Opinion
No. 22532
Decided March 18, 1931.
Municipal corporations — Dismissal of police officer for violating rules by instituting court action — Constitutional law — of redress in courts — Section 16, Article 1, Constitution.
The attempted dismissal of a police officer of a city on the ground that he instituted an action in the courts, in violation of a rule promulgated by the chief of police, results in a denial of a constitutional right, and is in conflict with Section 16 of Article I of the Constitution of Ohio.
ERROR to the Court of Appeals of Cuyahoga county.
This case arises as an error proceeding to a judgment rendered by the Court of Appeals of Cuyahoga county in an action in mandamus instituted in that court. The relator, Russell Christian, upon September 17, 1929, and for a considerable period prior thereto, was a policeman of the city of Cleveland, Ohio, under the direct supervision of the police department of the city. The defendants are the director of public safety, the city treasurer, the chief of police, and the civil service commission of the city of Cleveland, Ohio, all of such defendants holding office under and by virtue of the provisions of the charter of the city of Cleveland.
Upon September 17, 1929, the relator was suspended from duty for an alleged infraction of a departmental rule of the police department of the city of Cleveland, namely, rule No. 915. The fact of suspension was thereupon certified to the director of public safety, before whom a hearing was had, and on January 14, 1930, as a result of such hearing, the relator was dismissed from office as a member of the division of police. An appeal was thereupon taken by the relator to the civil service commission and hearing had, which hearing resulted in the commission's denying the appeal.
The petition prays for a writ of mandamus ordering the reinstatement of the relator, the issuance of a warrant for his back salary, and other relief.
The petition sets forth order No. 915 of the police department of the city of Cleveland, which reads as follows:
"Order 915 — August 6, 1929 — Matowitz — Your attention is hereby directed to the fact that we have received numerous complaints from citizens about members of the police department compelling them to pay for damages to auto property of said members, which was damaged in collision with their autos, and in some cases where our men were entirely at fault, some of them have gone so far as to threaten the citizens with arrest unless they complied with their demands.
"Kindly see that each and every member of the force is instructed that on and after this date no member of the department will be permitted to demand, request or accept anything of value for settling any civil case in which they are involved, or submit any case to the prosecutor or any attorney for settlement unless they receive permission to do so from this office. Signed — Jacob Graul."
The petition further avers, in substance, that on or about the 13th day of August, 1929, the relator suffered personal injuries as the result of an accident which occurred on the streets of the city of Cleveland when his motorcycle and a bus owned, managed, and controlled by the Cleveland Railway Company collided; that thereafter he consulted an attorney and a petition was filed on relator's behalf without his obtaining permission for the filing of such law suit, and that his dismissal is grounded upon his failure to secure such permission.
The joint answer of the defendants admits the facts alleged in the petition, and further alleges that under the authority granted by the charter the relator was suspended "for filing a suit for damages against the Cleveland Railway Company without first obtaining the permission of the Chief of Police, as required by Order No. 915, issued August 6th, 1929, and for violating Article 11, Rule I, for continually or willfully violating the rules and regulations of the Division of Police of the Department of Public Safety," and that, upon hearing had by the director of public safety under the charter, such director found the relator guilty, as charged, of violating order No. 915, and also of violating article 11, rule I, "for continually and willfully violating the rules and regulations governing the Division of Police," and, so finding, dismissed the relator from the department.
The answer further avers that, in joining the division of police, the relator agreed to submit to the rules and regulations of the department, and that, at the time of filing the suit against the Cleveland Railway Company he knew of the existence of rule No. 915, and deliberately violated such rule.
The answer further avers that the director of public safety, the civil service commission, the chief of police, and the treasurer of the city of Cleveland have acted in good faith and exercised their best discretion in the matter, and asks that the writ be denied.
The case came into the Court of Appeals upon the petition, the answer, and an agreed statement of facts. A motion was made by the relator for judgment upon the agreed statement of facts. The Court of Appeals dismissed the petition, and error was then prosecuted to this court.
Messrs. Anderson Lamb and Mr. Homer H. Marshman, for plaintiff in error.
Mr. Harold H. Burton, director of law, and Mr. Francis B. Douglass, for defendants in error.
The agreed statement of facts shows that the relator was charged with violation of rule No. 915, and also charged with violation of article 11, rule I, which penalizes "willfully and continuously violating rules and regulations of the department." It is also shown by the record that, during the period from 1925 to the time of discharge, the relator has been once suspended for one day for a minor infraction of the rules, and that this has been the only disciplinary action taken against him during his term as police officer, excepting the dismissal out of which the present suit arose. No consideration was given to this suspension by the director of public safety or by the civil service commission.
It is argued by counsel on behalf of the director of public safety that the relator was discharged not merely for violating order No. 915, but for "willfully and continuously violating the rules and regulations of the department." However, in view of the conceded fact that the only infraction of the rules, which was the subject of the dismissal charge, was the institution of suit against the Cleveland Railway Company, we are compelled to regard the charge under order No. 915 and the charge of "willfully and continuously violating the rules and regulations" as being identical in substance.
The order in question was issued by the chief of the division of police, which under the Municipal Code is "to be administered and controlled by a chief of police, subject to the provisions of the charter and ordinances of the City of Cleveland and to the direction of the director of public safety." Order No. 915 does deal with the control and administration of the division of police, and therefore the order was properly promulgated by the chief of police.
The director of public safety later dismissed the relator from its employment as policeman, under this order, and, in so doing, approved it.
If order No. 915 covered the institution of a lawsuit in court, the relator did violate the order, with knowledge of its contents, and purposely. The order applies to claims for personal injuries such as this record presents. While there is some cogency in the suggestion of the city law department that the chief of police can hardly be held to technical legal precision in the issuance of an order, the order itself is precise and definite in terms. It requires every member of the department not to demand or request or accept anything of value for settling any civil case, or to submit any case, whether civil or criminal, to the prosecutor or any attorney for settlement unless the policeman receives permission from the office of the chief of police. Hence its application is not limited to cases of property damage.
We agree with the contention of the plaintiff in error that the order to apply for permission to institute the demand carries with it the right either to refuse or grant the permission. The order does not read that such claims cannot be instituted unless the policeman consults with the police department. It specifically provides that the claim cannot be urged unless the policeman receives permission from the police department to do so. However, we do not agree that the rule governed the institution of this action. It was issued in a wise and certainly most commendable effort to eliminate the coercion of private citizens by police officers in damage cases. It was construed both by the director of public safety and by the civil service commission as forbidding resort to the courts. If this construction is proper, it makes the order unconstitutional, for it places a superior officer as an intermediary between the courts and the citizen, deciding whether or not the court shall receive his suit. This construction deprived Christian of his resort to the courts, and therefore deprived him of a constitutional right guaranteed him by Section 16 of Article I of the Constitution of Ohio, which provides that: "All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." He was justified in instituting a suit in the courts without consultation with his superior officer, and hence his dismissal upon that ground was improper. The writ will be allowed. The question of money damages we do not decide.
Judgment reversed.
MARSHALL, C.J., JONES, MATTHIAS, KINKADE and ROBINSON, JJ., concur.