In Ford v. City of Toledo, 64 Ohio St. 92, 59 N.E. 779, there was a tract of upland enjoying natural drainage, but the Supreme Court sustained an assessment for a general sewerage system on the ground that although the upland might not need surface drainage, and while its owners felt that there was no need for sanitary drainage, the public, and not the owners, were the judges of the need of sanitary sewerage, and, further, that the fact that sanitary sewerage was deemed necessary by the city was a sufficient reason for sustaining an assessment for general sewerage purposes.Summary of this case from Daehler v. City of Portsmouth
Decided December 11, 1940.
Mandamus — Writ not issued to recover salary — Civil service employee suspended and suspension modified by commission.
APPEAL from the Court of Appeals of Lucas county.
This proceeding in mandamus originated in the Court of Appeals of Lucas county, which sustained a demurrer by the respondent and, relator not desiring to plead further, entered judgment dismissing the amended petition. Relator prosecuted appeal to this court as of right. The parties will be referred to as they appeared in the Court of Appeals.
Among other allegations, relator, James H. Ford, pleaded that he was a member of the police department of the city of Toledo, with the rank of lieutenant of detectives, earning a salary of $200 per month. The chief of police ordered relator's suspension and served upon him charges for violating two sections of the departmental rules, supplementing the charges with specifications. After a hearing as required by the charter of Toledo, the acting and deputy director of public safety found the relator guilty of five of the seven specifications, sentenced him to 30 days suspension without pay, but made the sentence retroactive, and ordered him back to work immediately. Upon appeal the civil service commission exonerated relator of violating one section and modified his suspension to five days, without pay, for violating the other section.
The relator claimed that by reason of the void order of suspension by the acting and deputy director of public safety and the void modification by the civil service commission, he was deprived of his salary amounting to $319.98 covering the period from the date of his suspension to the date of the order of the civil service commission. He prayed for a writ of mandamus to set aside the void and unlawful "judgment" and suspension. He prayed also that he be restored to all of his former rights as a member of the police department, that he be exonerated of all charges preferred, and that the auditor and commissioner of the treasury be ordered to pay the relator all wages due him amounting to the sum stated.
Mr. Charles J. McLaughlin, for appellant.
Mr. Martin S. Dodd, director of law, and Mr. James Slater Gibson, for appellees.
Counsel for the relator does not question the right of the chief of police to suspend a member of the police department but predicates his claim that the proceedings were void and unlawful upon the asserted invalidity of the designation of the commissioner of inspection or deputy director of safety as director of public safety and the unconstitutionality of the charter provisions relating to appeals to the civil service commission.
The Court of Appeals was correct in concluding that the action below was one merely to recover salary accruing during the time of suspension and that the petition did not state a cause of action for invoking the extraordinary writ of mandamus.
The judgment of the Court of Appeals is affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.