text:
    The State, ex rel. Kelley, v. Hill et al.
    (No. 260
    Decided June 27, 1950.)

      Mr. Reed M. Winegardner and Mr. Dwight A. Swisher, for relator.

      Mr. W. W. Hill, for respondents.
   Wiseman, J.

This is an action in mandamus originating in this court, in which the relator, Elmer Kelley, prays for an order requiring the respondents, the city manager, the chief of police, auditor and members of the civil service commission of the city of Washington Court House, Fayette county, Ohio, to recognize the relator as the lawful incumbent to the position of city patrolman, and to assign him to duty as such.

The controlling facts are not in dispute and, for the most part, have been stipulated.

In 1943, the relator became city patrolman under a provisional appointment. He continued in that employment until May 25, 1945, at which time he took a civil service examination for the position and received a grade of one hundred per cent. After being certified by the civil service commission to the city manager, he was given a permanent appointment as patrolman, on May 31, 1945. Relator served as such patrolman under the permanent appointment from June 1, 1945, until February 1, 1946. On January 28, 1946, he was notified that his employment was terminated effective February 1,1946. The notice states:

“The reason for termination of such employment is the return from military service of a former incumbent of such position and his restoration to his former position in accordance with Section 486-16a of the General Code of the state of Ohio.

“You will be granted all the rights and privileges set forth in Section 486-16a of the General Code.”

Thereafter the relator was employed as patrolman during the vacation period in 1946, the last day of his employment being August 31, 1946. On May 20, 1947, a civil service examination was given for patrolmen and from the certified eligible list one Willis'Dawson was appointed as patrolman, effective June 1, 1947. The name of the relator was not placed on the eligible list. Other appointments of patrolmen were made in 1948 and 1949 from an eligible list on which the name of the relator did not appear.

The question for determination is whether the relator was deprived of his rights under the civil service laws of the state of Ohio after his employment was terminated on February 1, 1946.

It was stipulated that the relator received a permanent appointment effective June 1, 1945, without first having been appointed for the three-month probationary period as provided in Section 486-13, General Code. It is conceded that the relator, after receiving such permanent appointment, served as patrolman for a period far exceeding the probationary period of three months. No report was made by the appointing authority to the civil service commission at the end of the three-month period indicating that Ms services were unsatisfactory. In the absence of a showing to the contrary it may reasonably be presumed that Ms services were satisfactory. The statutory provision relative to the probationary period is for the benefit of the appointing power. The validity of his appointment cannot be affected by the neglect of the appointing power to comply with the provision of the act requiring his report to be made at the end of the three-month period. In the absence of a report at the end of the three-month period stating that the services of relator were unsatisfactory, his appointment became permanent at that time. Consequently he was serving under a legal, permanent appointment at the time of the termination of his employment. See State, ex rel. Noble, v. Atkinson, Admr., 31 Ohio Law Abs., 576. The case of State, ex rel. Artman, v. McDonough, Dir., 132 Ohio St., 47, 42 N. E. (2d), 982, is clearly distinguishable.

Respondents contend that the relator has been guilty of laches in that he failed to seek redress from his alleged wrongful discharge on February 1, 1946, until December 15, 1947, the date on which the action was instituted. Relator does not claim his discharge was wrongful, but on the other hand concedes that it was in accordance with law, his discharge being due to the return from military service of a former patrolman and the restoration of 'such person to his former position as provided in Section 486-16a, General Code.' No right of action accrued at the time of the discharge. Relator’s right of action accrued at the time of the appointment of Dawson as patrolman who did not enjoy priority of appointment over the relator. This appointment was made on June 1, 1947. In our opinion the relator is not guilty of laches in delaying the institution of the action for a period of six and one-half months.

We now óonsider two sections of the Code in determining the rights of the relator. Section 486-16a, General Code, in part provides :

“When such classified employee is restored to his position and to the status, rank, rating or qualifications hereinbefore provided following such military service, the former incumbent of such position who has not entered such armed services shall be demoted to the next lower rank, and the youngest classified employee in point of service in the next lower rank shall be demoted, and so on down until the youngest employee in point of service has been reached, who shall be laid off, if necessary. The person so laid off shall be placed in an equitable rank upon the same eligible list from which he secured original appointment, or an eligible list subsequently established for the position, or upon an eligible list which the commission shall regard as appropriate for the classification involved. The term ‘placed in equitable rank’ as used herein shall mean a rotation purely on the basis of prior service.” (Emphasis ours.)

Section 486-16a, General Code, must be construed in conjunction with Section 486-176, General Code, which in part provides:

“Whenever it becomes necessary in a police or fire department, through lack of work or funds or for causes other than those outlined in Section 486-17a of' the General Code, to reduce the force in such department, the youngest employee in point of service shall be first laid off. Should a position in the police or fire department once abolished or made unnecessary be found necessary to be recreated or reestablished within three years from the date of abolishment, or should a vacancy occur through death, resignation, or through any other cause within three years from the date of the abolishment of the position or lay off, the oldest employee in point of service of those laid off shall b$ entitled to same providing he was at the date of his separation a regular and permanent employee.” (Emphasis ours.)

It is our conclusion that the relator was, at the time of his separation from employment, “a-.regular and permanent employee” and as such was entitled to the benefits of the civil service law. The relator’s name was never placed on the same eligible list from which he secured original appointment. Neither was it placed on an eligible list subsequently established for the position as required by Section .486-16a, General Code. A vacancy having occurred within three years after the relator’s layoff, and the necessity for the appointment of a patrolman having arisen, the relator was entitled to the appointment under the provisions of Section 486-176, General Code, since, he enjoyed priority of appointment. The duty to make the appointment according to the provisions of the Civil Service Act rests on the appointing power and a formal application for the position by the one entitled thereto is not required.

Respondent, city manager, states that he did not appoint the relator because he did not consider him a competent patrolman. His competency as a patrolman is not an issue and this question cannot be tested in this case.

The above-quoted provisions of the civil service laws are mandatory and the failure to comply therewith gives rise to a right of action in mandamus to compel compliance.

A writ of mandamus may issue as prayed for.

Writ allowed.

Miller, P. J., and Hornbeck, J., concur.


source: Caselaw Access Project

author: Per Quriam.

license: Public Domain

text:
    Adams, Appellant, v. Gurklies et al., Appellants; Comer, Appellee.
    (No. 119
    Decided November 19, 1949.)

      Mr. Benjamin E. Seibert, for appellant Dorothy Adams.

      Mr. Arthur W. Ourhlies, for appellants Arthur W. Gurklies and another.

      Messrs. Houston, Houston $ Holding, for appellee.
   Per Quriam.

This is an appeal on questions of law from an order of the Common Pleas Court vacating a judgment in the case of Dorothy Adams against Arthur W. Gurklies, being No. 22178 in the Common Pleas Court of Champaign County.

The judgment which was vacated found that the plaintiff was entitled to the possession of a $5,000 note and mortgage which the defendant was ordered to surrender and deliver to the plaintiff. Prior to the action above recited, the will of Emmett Comer, deceased, had been ^admitted to probate in' the Probate Court of Champaign County, Ohio, by the terms of which Arthur W. Gurklies was named executor and was thereafter appointed and qualified as such executor. The order of vacation was predicated upon a motion filed in the Common Pleas Court in ease No. 22176 by Harry Comer, sole next of kin of decedent, who had prior thereto instituted his action to contest the last will and testament of decedent.

The motion at length fully set out chronologically the proceedings incident to the probating of the will of Emmett Comer, deceased; the naming of the executor; the filing of the name, of Benjamin. E. Seibert as attorney of record for the executor; the filing of the inventory of the assets of the estate and the listing of the •note in question as an asset; the appraisement of the property of decedent; the filing, hearing and approval of the inventory and appraisement; one of the terms of the will, namely item YÍI, “I give to Dorothy Adams, the balance duo on the note and mortgage given to me by Frank and Elsie Nease, dated March 18,1948, when same becomes due and for her to have the same rights therein as I would have if I were living and which I have this day assigned to her; to be hers absolutely”; and the institution of the action of Adams v. Gurklies as an individual and the order therein. Then followed averments, the effect of which was to charge bad faith on the part of Gurklies, individually and as executor, and Benjamin E. Seibert, his attorney, in the institution of the suit, Adams v. Gurklies, and the subsequent proceedings therein including the taking of the judgment, and that the executor did not have his day in court and failed to exercise the degree of care required of him in.preserving and defending the assets of the estate. The institution of the action to contest the will was set up.

The motion prayed that Harry Comer and the executor be made parties and'for vacation of the judgment.

Nine errors are assigned to the judgment which we will not discuss separately. The principal question is whether the appellee, Harry Comer, had such an interest in the subject matter of the action, Adams v. Gurklies, individually, as to authorize him to be made a party to the action and to invoke the jurisdiction of the court to act upon his motion.

In the case of Kennedy, Exr., v. Walcutt, 118 Ohio St., 442, 161 N. E.; 336, it is held that a person who is a beneficiary under a will has such a pecuniary interest in the estate of the testator as entitles him, under Section 12079, General Code, to contest another' alleged will of the same testator which would destroy, reduce,, or impair his share in such estate. A fortiori, the next of kin, who would be the sole beneficiary if the probated will is set aside, has such a pecuniary interest in the estate' as would entitle him to contest the will. It would not be necessary to invoke the pronouncement in Kennedy, Exr., v. Walcutt, supra, to establish the principle that the next of kin, who would take if the will was set aside, would have such a pecuniary interest as to answer the description of the language in Section 12079, General Code, “a person interested in a will or codicil admitted to probate * *

The effect of a contest of a will upon the powers of executors during the contest is defined in Section 10509-22, General Code, which is to clothe the administrator or executor with authority to carry on the mandatory obligations of the estate, but to hold distribution in abeyance.

In our judgment, it follows that the next of kin has such an interest in the assets of the estate that he may intervene and interpose an equitable defense, the effect of which, if true, would be to prevent the dissipation of assets of the estate of which he would be a beneficiary if the will was eventually nullified. In this conclusion we recognize that the executor or administrator, during the administration of the estate, is nominally the legal representative of the testator and of those who might share in the estate. Here we do not have the ordinary situation. The motion is based in part upon the claim that there has been a complete fail-Are of the executor to exercise his manifest obligation to the estate, as a result of which assets that properly belong to it may be removed from administration.

We have no record of the proceedings in the trial court and must accord to. the order appealed from every intendment which will support its regularity and validity. So doing, we cannot say that the court erred in making Harry Comer and the executor parties or in taking such action as would prevent the transfer of the note to Dorothy Adams without the intervention of the executor. It is asserted that no notice was given to the executor of the pendency of the proceedings to vacate and of the purpose to make him a party defendant but we cannot so hold because there may have been an entrance of appearance by the executor at the hearing on the motion.

However, we stand upon our opinion in Canal Winchester Bank v. Exline, 61 Ohio App., 253, 22 N. E. (2d), 528, and hold that the proper order in this case was not a vacation but a'suspension of the judgment.

We find no other error assigned well made and with this modification in the order appealed from, the judgment will be affirmed.

Judgment modified and affirmed.

Miller, P. J., Hoenbeck and Wiseman, JJ., concur.


author: Wiseman, J.

text:
    Bowman v. Alvis, Warden, et al.
    (No. 4435
    Decided June 30, 1950.)

      Mr. Jesse G. Dickinson and Mr. R. Patrick, for petitioner.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Alan E. Sclnoarsivalder, for respondents.
   Wiseman, J.

This is an action in habeas corpus, originating in this court, in which the petitioner seeks his release from the Ohio State Penitentiary where he has been confined since November 2, 1948, on a mittimus issued by the Common Pleas Court of Franklin County, after having been tried and convicted on four counts for armed robbery.

The facts in this case were presented to this court in the form of an agreed stipulation.

It is conceded that if the court had jurisdiction, a remedy by habeas corpus is not available. However, petitioner contends that the court never acquired jurisdiction and that if the court did acquire jurisdiction, it lost it.

Petitioner contends further that the court never acquired jurisdiction, due to the fact that the record shows petitioner was.never served with a warrant at the time of his arrest; that he was not given a preliminary hearing; and that he was denied counsel before arraignment. When arraigned, the petitioner pleaded not guilty. Four and one-half months later the petitioner was placed on trial. Five days before trial the court appointed counsel to represent the petitioner. We fail to see how the rights of the petitioner were prejudiced by the failure of the court to appoint counsel before arraigmhent. The petitioner entered a plea of not guilty and, after counsel was appointed, was tried and convicted. The record does not show that the petitioner demanded counsel and was refused. The facts in the cáse bring it within the principle laid down in the case of In re Burson, 152 Ohio St., 375, 89 N. E. (2d), 651, which held that the accused may waive his right to counsel and such waiver may be express or implied.

Under the facts in the instant case, the failure to appoint counsel did not amount to a denial of “due process” and did not deprive the court of jurisdiction. Assuming, without deciding, that irregularities took place in the preliminary steps leading up to the indictment and arraignment, such irregularities would not affect the jurisdiction of the court and would not be sufficient grounds for discharging petitioner in a habeas corpus proceeding. Newberry v. State, 15 C. C., 208, 7 C. D., 622. The jurisdiction of the court is not affected by irregularities in the manner in which the accused is brought within the jurisdiction of the court. 22 Corpus Juris Secundum, 242, Section 146. See, also, Pettibone v. Nichols, 203 U. S., 192, 216, 51 L. Ed., 148, 27 S. Ct., 111.

Petitioner contends that if the court acquired jurisdiction, such jurisdiction was subsequently lojst due to the facts that during the trial of the case the court permitted a juror to attend the funeral of her mother-in-law, accompanied by a deputy sheriff, at which time the court declared a recess; and that on one occasion another juror, during the course of the trial, became ill and was permitted to leave the courtroom for the purpose of taking a sedative, after which she returned to the courtroom and the trial continued. Petitioner contends that the court should have discharged the jurors and declared a mistrial, citing in support thereof Section 11420-7, General Code, which in part provides that, “because of the sickness of a juror, or accident or calamity which requires it * * *, the court may discharge the jury.”

Section 13443-13, General Code, also is cited, which in part provides that, “if, before the conclusion of the trial, a juror becomes sick or for other reason is unable to perform his duty, the court may order him to be discharged.”

The trial proceeded at all times with a full panel and the record does not affirmatively show that the jurors were in any way incapacitated. The facts stipulated are not sufficient to justify an inference that any of the jurors were incapacitated to discharge their full duties as jurors. The record does not disclose that the petitioner at any time entered an objection on the ground that the jurors were incapacitated. The question as to whether the juror should have been discharged and a mistrial ordered lies within the sound discretion of the trial court. 12 Ohio Jurisprudence, 844, Section 853. In view of-the record, the presumption prevails that the trial court properly exercised its discretion in this matter. Furthermore, the judgment is not subject to collateral attack on this ground in a habeas corpus proceeding.

Finally, it is contended that the jurisdiction of the court was lost due to the substitution of one judge for another during the course of the trial. After the trial had commenced and before the verdict was returned the trial judge became ill and was unable to continue to preside; thereupon another, judge of the same court conducted the trial and received the verdict. The motion for a new trial was decided by the judge who presided in the beginning of the trial. The record is not clear at what stage of the proceedings the substitution of judges was made. The stipulation does state that the substitute judge did not hear the earlier testimony, arguments, objections or exceptions taken; and that he had no opportunity to observe any of the witnesses who had testified previously. The record does not show affirmatively that he had any prior knowledge of any of the above issues.

The record does not show that the relator interposed an objection to the conduct of the trial by the substitute judge; neither does the record show that the petitioner expressly-consented. In the absence of an affirmative showing to the contrary, it may be presumed that the accused consented to the substitution of judges by the continuation of the trial to its completion. No claim of unfairness or prejudice is made and we fail to find any.

The petitioner contends that one judge cannot be substituted for another during the course of the trial of a criminal case and that a mistrial will result from the changing of judges without defendant’s consent. In support of this proposition, petitioner cites the following cases: Freeman v. United States, 227 F., 732; Durden v. People, 192 Ill., 493, 61 N. E., 317; Commonwealth v. Thompson, 328 Pa., 27, 195 A., 115; Labonte v. LaCasse, 78 N. H., 489, 102 A., 540, 54 A. L. R., 952; Bahnsen v. Gilbert, 55 Minn., 334, 56 N. W., 1117, 54 A. L. R., 959; and Mason v. State, 5 C. C. (N. S.), 113, 26 C. C., 535.

In the Freeman case which was decided by the United States Circuit Court of Appeals for the Second Circuit in 1915, it was held that the constitutional right of trial by jury means a jury of 12 jurors presided over by one judge throughout the trial; and that the accused cannot waive trial by jury and cannot consent to the substitution of one judge for another.

In 1935 the same court in Cahill v. Mayflower Bus Lines, 77 F. (2d), 838, in commenting on the Freeman case said:

“In Freeman v. United States, 227 F., 732, this court held a judge could not be substituted for another during the taking of testimony because a substituted judge would he unable to advise the jury about the value of the testimony and that a defendant was not free to waive a jury trial. It is now authoritatively decided a defendant may waive a jury. Patton v. United States, 281 U. S., 276, 50 S. Ct., 253, 74 L. Ed., 854, 70 A. L. R., 263.”

The court in the Cahill case relied on the case of Patton v. United States, 281 U. S., 276, 50 S. Ct., 253, which was decided in 1928, and held:

“The provision of Art. Ill , Sec. 2, of the Constitution, relating to trial by jury, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election.

t i m * *

“The view that power to waive a trial by jury in criminal cases should be denied on the grounds of public policy is rejected as unsound.”

In Simons v. United States, 119 F. (2d), 539,. the Circuit Court of Appeals for the Ninth Circuit, in 1941, stated that the Freeman case was based on the premise that the right to a jury trial cannot be waived. The court held that this premise has been destroyed in the Patton case. The first paragraph of the syllabus in the Simons case is as follows:

“The right to a jury trial, including the right to have the same judge proceed throughout the trial, as preserved by the federal Constitution is a ‘privilege’ which the accused may forego at his election. U. S. C. A. Const. Art. 3, Sec. 2.”

The court held that the fact one judge was substituted for another did not constitute a denial of “due process” and did not deprive the court of jurisdiction.

The Supreme Court of Illinois, in the Durden case, supra, held it was reversible error to substitute one judge for another; and that the substitution in the trial of a criminal case is against public policy. In Commonwealth v. Thompson, supra, the Pennsylvania court approved the principle laid down in the Freeman and Durden cases, but affirmed the judgment on the ground that the substitution of another judge at the end of the voir dire examination was not prejudicial. The Labonte and the Bahnsen cases, supra, are not in point.

In Mason v. State, supra, the Circuit Court for Ashtabula county in 1904 held :

“Where upon a trial for murder in the second degree, after the evidence is all introduced, the trial judge becomes incapacitated to further continue in the case, and the prosecution is adjourned for eighteen days, part of the time from day to day by the sheriff, and at other times by another judge of the same subdivision; during which adjournment the jury is permitted to separate, going to different parts of the county; at the end of the eighteen days another judge of the same district hears the arguments, prepares the charge and delivers it to the jury; passes upon the motion for a new trial, and sentences the prisoner; and it does not affirmatively appear by the record that the new judge read any portion of the evidence, neither that the jury had been in any manner tampered with. Held: That there was irregularity in the proceedings of the court and jury, and that the judgment should be reversed and a no\v trial granted.”

It will be observed that the court did not hold the judgment void on the ground that the court, was without jurisdiction, but that the judgment was based on an irregularity which constituted reversible error.- •

On the record in the instant case we may presume the petitioner consented to the substitution of one judge for another. On this proposition the court, in People v. Casselman, 10 Cal. App., 234, 101 P., 693, held that where no objection is shown to the substitution of one judge for another, it will be presumed that the accused consented to the substitution, and that the substitution did not affect the jurisdiction of the court. In Burrage v. State, 101 Miss., 598, 58 So., 217, it was held that where the accused consents to a substitution of judges, a change of judges cannot be assigned as error on review. In People v. Henderson, 28 Cal., 465, the court said it could see no objection to the substitution of judges if the parties consented, and by consenting and taking his chances on a successful outcome of the case, the accused, after conviction, could not repudiate the .proceedings and try for a more favorable result.

We are required to distinguish between any remedy afforded the petitioner by direct appeal and by a habeas corpus proceeding. In the cases cited by petitioner the question was raised on error. A writ of habeas corpus cannot be made a substitute for error proceedings. A writ of habeas corpus is available only upon a showing that the court was without jurisdiction. 20 Ohio Jurisprudence, 425, 426, Section 6, 469; 25 American Jurisprudence, 184, Section 54. See, also, Section 12165, General Code. In United States v. Valante, 264 U. S., 563, 44 S. Ct., 411, 68 L. Ed., 850, a similar question was raised and the Supreme Court, speaking through Mr. Justice Sanford, held that if any error existed in the substitution of one judge for another, such substitution did not go to the jurisdiction of the court or render the judgment void and that review should have been sought by writ of error, and that a remedy by habeas corpus is not available.

We may well adopt and apply to the issues in this case the words used by our Supreme Court in the Bur son case which are as follows:

“Finally, the Common Pleas Court of Franklin County is a court of general jurisdiction and had jurisdiction of the case involving the indictment of the petitioner. In the opinion of this cpurt, that court did not take any action whereby it lost jurisdiction and which made its judgment void. If it is conceded that there was any irregularity in the proceedings of the court, it constituted error but it did not oust the court of jurisdiction. The petitioner had and still has an adequate remedy at law by way of review, on appeal, and the extraordinary remedy of habeas corpus does not lie.”

Petitioner remanded to custody.

Miller, P. J., and Hornbeck, J., concur.


author: Fess, J.

text:
    The State, ex rel. Ray v. Klein, Aud.
    (No. 4352
    Decided June 5, 1950.)

      Mr. Robert N. Zanville and Mr. Nathan Greenberg, . for relator.

      Mr. John J. McCarthy, director of law, for respondent.
   Fess, J.

This is an action in mandamus, originating in this court, brought by relator as a taxpayer against the city auditor, city manager and members of the council of the city of Toledo and the members of the Lucas county budget commission. (The personnel of the city manager and members of council have changed since the date on which they were made additional parties defendant.)

Relator prays that a writ of mandamus issue to require the respondent auditor “to transfer all funds in his hands and in the bond retirement fund under ordinance No. 18-46, section 14, paragraph 7, to the trustees of the sinking fund of . the city of Toledo for the purpose of carrying out the terms of such ordinance, namely, the retiring of outstanding bonded indebtedness of the city of Toledo, and that the respondent be further ordered and directed to correct and .•amend the budget information furnished the audito'r bf Lucas county, Ohio, as aforesaid, and include therein the exact and true amount contained in the bond retirement fund for the purpose of furnishing the county budget commission an accurate statement of the unencumbered balances in the hands of the respondent for the purpose of debt requirements, ’ ’ and for all other and proper relief.

Section 14 of ordinance No. 18-46 (the Toledo payroll tax ordinance) allocates the funds collected into seven different categories.

Paragraph 2 provides:

“2. The sum of $1,388,543 per year shall be paid into the Bond Retirement Fund for the purpose of retiring the outstanding indebtedness of the City of Toledo as is required to be retired from the proceeds of taxes raised within the ten-mill constitutional and statutory tax limitations.

“From the aforesaid fund each year the City Auditor shall cause to be placed with the Commissioners of the Sinking Fund an amount necessary to retire such bonds and pay the interest and service charges thereon as they become due. ’ ’

Paragraph 7 provides:

“7. The balance of any funds collected under provisions of this ordinance shall be placed in the Bond Retirement Fund of the City of Toledo, for the purpose of retiring outstanding bonded indebtedness.”

The evidence discloses that the, figure $1,388,543 in paragraph 2 represented one-fifth of the outstanding “inside” indebtedness of the city and the provision contemplated the liquidation of the entire amount of the inside indebtedness within the five-year period for which the ordinance was enacted. The requirements-of paragraph 2 had been followed, but pending maturities, the accumulated, reserve has been invested im short term United States bonds and city of Toledo anticipatory notes. As of April 6, 1949, the surplus account under paragraph 7 in the bond retirement fund', amounted to $5,115,594. None of the funds allocated^ under paragraph 7 to the bond retirement fund during-the years 1946-1948 was used to pay principal or interest on the city’s outside debt, such indebtedness.having been paid by a tax levy on real estate and general personal property duplicate. The major portion of the $5,000,000 was also invested in short term government bonds and Toledo anticipatory notes.

On November 16, 1948, .the city council enacted ordinance No. 544-48, directing that the sum of $1,758,-548.85 be transferred from the bond retirement fund to the commissioners of the sinking fund for the purpose of paying the same on the “outside” bonded indebtedness. Subsequent to November 2, 1948, the city tax budget for the year 1948 was amended and it was disclosed to the county budget commission that payroll tax funds were available in the amount necessary to retire the outside debt due and payable in the year 1949.

Since January 1949, the city auditor has transferred! from the bond retirement fund to the sinking fund its-, monthly requirements to meet maturities on the outside debt and, at the time of the hearing on April 1$,. 1949, hM transferred to the trustees of the sinking fund all the money necessary for debt service on all classes of general obligation bonds due and payable up to June 1, 1949.

The record is silent as to the total amount of the unpaid “outside” bonded indebtedness of the city. On May 19, 1950, the parties stipulated that in 1948, prior to the filing of the petition, respondent had sufficient payroll income tax funds to retire the outside bonded indebtedness of the city in 1949, and that prior to the filing of the petition none of the payroll income tax funds were turned over to the sinking fund for the purpose of retiring the outside bonded debt; that beginning in January, 1949, the respondent, for the first time, transferred such funds from the bond investment account'to the commissioners of the sinking fund for the purpose of retiring outside debt, but such transfers were only in an amount sufficient to meet 1949 bond maturities; that respondent in 1949- retained all excess payroll income tax funds in the bond retirement fund and made no other investments and transferred no other or additional payroll income tax funds to the sinking fund; and that for the year 1950 respondent also transferred funds to the sinking fund for the retirement of outside debt maturities as the same became due and no real estate tax levy was required or made for such purpose.

Paragraph 7 of section 14 of the ordinance requires the surplus funds collected to bo placed in the bond retirement fund “for the purpose of retiring outstanding bonded indebtedness” without distinction between “inside” or “outside” indebtedness. But since paragraph 2 contemplated the liquidation of the entire amount of the “inside” debt within the five-year life of the- ordinance, paragraph 7 could apply only to the “outside” debt. (At the time the ordinance was passed, the city had other bonded indebtedness, but •it consisted of revenue bonds which were self-liquidating.)

It will be noted that paragraph 2 specifically requires-the auditor to place with the commissioners of the sinking- fund the amount necessary to pay the principal, interest and service charge upon the ‘'inside” debt as it becomes due. No similar duty is provided in paragraph 7, but it merely provides that the surplus shall be placed in the bond retirement fund for the purpose of retiring- bonds. The auditor complied with paragraph 2, but he invested the surplus referred to in paragraph 7 in short-term securities and did not pay any of such funds to the sinking fund until directed to do so by ordinance No. 544-48. As a result, the outside debt maturing in 1946, 194V and 1948 was paid from real estate and personal property taxes and not from the income tax surplus.

Under Section 4517, General Code, the auditor was authorized but not required to pay oyer the surplus to the sinking fund. Under Section 4296-1, General Code, and ordinances Nos. 224-36 and 9-43, the transfer of the surplus to the treasury investment account was legitimate and the investment of such funds in short-term securities was proper. The evidence fails to disclose that such funds were required to be used within six months after their investment. For all the record shows, the funds are still available for retirement of bonds.

We, therefore, conclude that, in the absence of a statute or ordinance imposing a mandatory duty upon the city auditor to pay the surplus funds into the sinking fund, the writ should not issue.

The writ should also be denied on another ground. Upon a petition for mandamus, the question presented is whether the relator is entitled to the writ at the time the action is filed, and any action thereafter taken by municipal authorities can not serve to defeat relator’s right' or affect the jurisdiction of the court to grant the remedy to which the relator was then entitled. State, ex rel. Ice & Fuel Co., v. Kreuzweiser, Inspector of Bldgs., 120 Ohio St., 352, 166 N. E., 228. However, the court must take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ. State, ex rel. Hawke, v. Weygandt, Chief Justice, 148 Ohio St., 453, 455, 75 N. E. (2d), 691. The “outside” debt maturing in 1946, 1947 and 194$ has been paid from other revenue, and in 1949 and 1950 from income tax surplus. The ordinance expires December 31, 1950, and only such surplus as may accrue from 1950 collections will be available for disposition pursuant to paragraph 7. Whether the auditor should have transferred the surplus in the prior years to the sinking fund for “outside” debt maturities is of no moment now. To issue the writ now would serve no useful purpose and would be in vain. “Nor will mandamus be allowed, unless the act of duty, enforcement of which is sought, is legally possible at the time.” 25 Ohio Jurisprudence, 1023, Section 41.

If it affirmatively appears that no wrong can possibly be remedied or right be possibly enforced or promoted, the writ should be refused. State, ex rel. Apple, v. Penze et al., Bd. of Edn., 137 Ohio St., 569, 575, 31 N. E. (2d), 841; State, ex rel. Stoer, v. Raschig, Dir., 141 Ohio St., 477, 49 N. E. (2d), 56; State, ex rel. Rhinehart, v. Celebrezze, Dir., 147 Ohio St., 24, 67 N. E. (2d), 776.

Writ denied.

Conn and Carpenter, JJ., concur.


author: Hunsicker, P. J.

text:
    Duncan, Appellee, v. Duncan et al., Appellants.
    (No. 1212
    Decided June 21, 1950.)

      Mr. Ban K. Coolc, for appellee.

      Mr. Virgil C. Burgett, for appellants.
   Hunsicker, P. J.

In this appeal on questions of law, the facts are that: Catherine Duncan filed an action for divorce and alimony in the Common Pleas Court of Lorain County, Ohio, against James Duncan, D. E. Goldthorpe as guardian of James Duncan, and John B. Moyes; James Duncan, an ’adult person, had been declared an incompetent prior to a ceremonial marriage with Catherine Duncan; D. E. Goldthorpe, as guardian of James Duncan, filed an answer and cross-petition to the petition of Catherine Duncan, in which cross-petition the guardian claimed his ward, James Duncan, was, at the time of such ceremonial marriage, of unsound mind and incapable of entering into a valid contract of marriage.

Upon motion of counsel for-Catherine Duncan, this cross-petition was ordered stricken from the files, to which exception was duly taken. Upon a hearing had on the divorce petition, a judgment for divorce and alimony was awarded Catherine Duncan. It is from such judgment, and the judgment striking the cross-petition from the files, that an appeal by Duncan and his said guardian is before this court.

The question determinative of this appeal is: May the guardian of the incompetent (James L. Duncan) maintain, by way of a cross-petition, without the consent of his ward, an action for annulment of a claimed marriage which the ward contracted during the period when said ward was under guardianship?

Section 10507-1, General Code, defines an “incompetent ’ ’ as follows:

“The term ‘incompetent’ means any person, who by reason of advanced age, improvidence, or mental or physical disability or infirmity, is incapable of taking proper care of himself or of his property or neglects or fails to provide for his family or for other persons for whom he is charged by law to provide.” '

A collection of authorities on the question before us concerning the right of a guardian to maintain an action for annulment of a marriage entered into by his ward is found in 70 A. L. R., 965, and 149 A. L. R., 1288. The majority view upholds the right of the guardian to maintain such action. See, also, Waymire, Gdn., v. Jetmore, 22 Ohio St., 271. Insanity as a Ground for Annulment, etc., 29 Virginia Law Review, 771.

There are no statutory grounds for annulment in Ohio. • Such action is cognizable only in a court of equity.

We determine that:

1. An action for the annulment of a ceremonial marriage may be asserted by way of cross-petition to an action for divorce.

2. Such action, in equity, may be brought by the guardian of a ward who has been declared to be an incompetent person under the statutes of the state.

3. The trial court erred in dismissing, upon motion and prior to a hearing on the merits, the said cross-petition. .

It appears that, under the circumstances set forth in this record, it was the duty of the trial court to first hear the action in equity set forth in the cross-petition, for the purpose of determining whether a valid marriage ever came into being. If the court should find that the marriage was void ab initio, then the petition for divorce of necessity would be dismissed, for the reason that relief in a divorce action is predicated upon a valid marriage. If the trial court should find that a ground for annulment had not been established, then it would be the court’s duty to proceed further and hear and determine the action for divorce.

It is the duty of the guardian to not only defend his ward in the divorce action, but to institute an action for annulment if, in his best judgment, such litigation is necessary to preserve the personal and property rights of his ward.

The motion for temporary alimony addressed to this court by appellee, Catherine Duncan, is overruled. See Dann v. Dann, 71 Ohio App., 110, 48 N. E. (2d), 140; Swartz v. Swartz, No. 820, Court of Appeals for Summit County, decided Oct. 12, 1923 (unreported).

We have examined all other claimed errors, and find none prejudicial.

The judgment of the trial court is reversed, and the cause is remanded to the Common Pleas Court of Lorain County, Ohio, for a new trial.

Judgment reversed.

Doyle and Guernsey, JJ., concur.

Guernsey, P. J., of the Third Appellate District, sitting by designation in the Ninth Appellate District.


author: Miller, P. J.

text:
    Meyer, Appellee, v. Dunifon, Dir. of Department of Liquor Control, et al., Appellants.
    (No. 4338
    Decided March 6, 1950.)

      Mr. Fred G. Reiners, for appellee.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Charles T. Kays, for appellants.
   Miller, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas reversing an order of the Board of Liquor Control which affirmed the action of the Department of Liquor Control in rejecting the application of the appellee for C-l, C-2, D-l and D-2 permits for the sale of intoxicating beverages under the laws of Ohio.

The record discloses that in October 1947 the appellee filed applications with, the department for the above-specified permits ; that the business was to be located in a building under construction; and that, in response to the application, an inspection of the premises was made soon thereafter by an inspector of the department who advised the appellee that the required inspection could not be made until appellee was “set up,” which meant that he must be ready to operate a-business meeting the requirements of the General Code. The appellee testified that he then installed in the-building special equipment worth approximately $8,500-; that sometime in January, while this equipment was being installed, the pastor of a church located within 500 feet of the proposed place of business-advised him that the church was going to object to the-establishment of the business; and that, notwithstanding this proposed objection, he completed the installation. On April 12, 1948, the appellee received notice-that his applications had been rejected for the following five reasons :

1. Proximity of the church.

2. Objection of the church.

3. Neighborhood objection.

4. Objection from ministerial association.

5. Not the type of neighborhood for permit premises..

The only error assigned is that the judgment is contrary to law. The Common Pleas Court, under Section 154-73, General Code, was empowered to review the action of the board but not to substitute its judgment for that of the board. Farrand v. State Medical Board, 151 Ohio St., 222, 85 N. E. (2d), 113. Since the-Board of Liquor Control was the trier of the facts, it possessed wide discretionary powers and its ruling-may be reversed if it exceeded its authority or abused its discretion. It must be conceded that the objection-by the church authorities to the issuing of these permits to be used by a tavern within 500 feet of the church constituted a valid objection under Section 6064-16, General Code. That section provides:

“Applications for regular permits authorized by this act may be filed with the Department of Liquor Control at any time' after this act becomes effective. No permit shall be issued by the department under authority of this act until fifteen days after the application therefor is filed; and no permit shall be issued by the department under authority of this act if the business specified to be operated in the permit applied for is to be operated within a distance of five hundred feet from the boundaries of a parcel of real estate having situated thereon a school, church, library or public playground, until written notice of the filing of said application with the department shall have been personally served upon the authorities in control of said school, church, library or public playground and an opportunity shall have been provided said authorities for a full and complete heáring before the Director of Liquor Control upon the subject of the advisability of the issuance of the said permit; except in the case of an application from a permit holder for a permit of the same class for the same location.”

It will be noted that the section permits the issuing of the licenses under the conditions here- existing, but only after notifying the church authorities and affording them an opportunity for a full and complete hearing before the director. The record discloses that such a notice was never served upon the church authorities but they did voluntarily enter their objection by filing petitions containing more than 200 signatures. Now, may the appellee be heard to complain because of this irregularity? We are of the opinion that the statute was enacted solely for the benefit of the organizations enumerated therein and not for the applicant. This being true he cannot be injured by such procedure. The appellee urges, however, that had the Department of Liquor Control notified the church of the pendency of the application within a reasonable time its objections would have been seasonably made and appellee would have been saved the expense of equipping the place for a business which he could not engage in; that the defendants’ inspector encouraged appellee to make the installations; and that to now deny the permits would work an injustice upon him. The trial court held that substantial justice had not been done appellee, and that the order .constituted an abuse of discretion on the part of the Director of the Department of Liquor Control. That judgment ignores completely any consideration to the church for whose benefit Section 6064-16, General Code, was enacted. The record discloses that a full hearing was had before the board and the presumption is that the board gave favorable consideration to the objections, and we cannot say there was an abuse of discretion. The actions of the inspector in encouraging the applicant to complete the project could not be binding upon the department and the doctrine of estoppel has no application. The power to grant permits' for the sale of intoxicating beverages is vested solely in the Department of Liquor Control. Section 6064-8 (2), General Code. It has authority also to promulgate rules and regulations with reference to applications for and the issuance of permits. Section 6064-3, General Code. Under this authority, there was adopted and filed with the Secretary of State regulation No. 24 which provides:

“Excepting class F permits, no permit shall be issued by the department until after inspection of the premises by the enforcement division and until after a report thereof shall have been filed with the department. ’ ’

Under this regulation the director was not authorized to issue the permits until the premises had been inspected, and the inspection could not be effectively made until the building was completed and the equipment required by Section 6064-15, General Code, was installed. That section provides that D-l and D-2 permits may be issued to the owner or operator of a hotel or restaurant licensed pursuant to Section 843-2, General Code. The record discloses that at no time while the application was pending was the restaurant in this building in operation. It must be in operation at the time the permit is applied for and issued. See Mocilnikar v. Board of Liquor Control, 84 Ohio App., 266, 85 N. E. (2d), 408.

We are of the opinion that the appellee is in error in assuming that the church would immediately raise its objection upon being notified of the application by the director. Section 6064-16, General Code, does not make such a requirement. That section requires merely that the church authorities shall be granted an opportunity for a full and complete hearing before the permits are granted. Therefore, if the objections were made at the hearing they would have been seasonably made. . The record discloses that the objections made by the church were substantial and therefore supported the ruling of the department. Under such circumstances the board did not abuse its discretion. The judgment of the Common Pleas Court is reversed and the ruling of the board is ordered affirmed.

Judgment reversed.

Hornbeck and Wiseman, JJ., concur.


author: MqClintock, J.

text:
    In re Removal of Watkins, Chief of Police.
    (No. 324
    Decided January 26, 1950.)

      Mr. Craig Carnes and Mr. Thomas B. Lloyd, for appellant, Harry Watkins.

      Mr. Robert Scott and Mr. Harry Johnson, for appellee, Russell Bean, mayor.
   MqClintock, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Guernsey County. Russell Bean, mayor of the city of Cambridge, made an order removing Harry Watkins, the appellant herein, as chief of police of Cambridge, to become effective March 4, 1948. The mayor stated the reasons for such discharge and removal as follows: That he was guilty of misfeasance, malfeasance and nonfeasance in office, incompetency, inefficiency, discourteous treatment of the public and neglect of duty in the particulars set forth in 37 distinct charges. The appellant gave an explanation in •writing to each of such charges.

The order of removal of appellant and appellant’s explanation of the same were filed with the Civil Service Commission of Cambridge and appellant appealed from the decision of the mayor to the Civil Service Commission of Cambridge.

After a hearing by the civil service commission in relation to such charges, appellant’s motion to dismiss certain of the charges was sustained as to charges Nos. 7, 8, 9, 12, 14, 17, 19, 20, 21, 28, 29, 30, 31, 32, 33, 34, 35 and 36. Charge No. 13 was withdrawn by the mayor and was not ruled upon by the commission.

The charges upon which the matter was finally submitted to the civil service commission were as follows:

“1. Chief Harry Watkins did on or about April 22, 1947, destroy or cause to be destroyed ticket summons when he knew or should have known that an inspector of the office of the'Auditor of State wanted to see the same.

“2. Chief Harry Watkins did on or about April 22, 1947, and on numerous occasions before said date destroy or caused to be destroyed ticket summons for parking meter violations, which ticket summons said Harry Watkins knew or should have known were the only record of the amounts of money taken in by the police department from said parking meter violators.

“3. Chief Harry Watkins on or about April 22,1947, and on numerous occasions before said date did destroy or cause to be destroyed ticket summons without first checking said ticket summons with the amount of money paid by the parking meter violators, knowing said ticket summons to be the only record of such payment.

“4. Harry Watkins did on numerous occasions, tlie specific dates riot known to informants, .remove money from the parking meter violations can kept in the police desk, and put said money in his pockets and in his personal billfold without counting said money or checking said money against the paid parking meter violations summons.

“5. That Harry Watkins received or as chief of said Cambridge police department, should have received, $163.75 from parking meter violations during the month of March, 1947, that of said amount less than $47 was turned in to the treasurer of said city by said Harry Watkins or the mayor of the city of Cambridge or said mayor’s secretary.

“6. That Harry Watkins said to all officers, ‘One time the can was $2.50 short and I made it up out of my own pocket. I’m not going to do that no more, after this someone else will make it up. ’ Said Harry Watkins had not previously mentioned this' to any officer, and said Harry Watkins could have easily checked or caused to be checked the amount received from 25c meter violations daily by checking said money with the paid and matched summons tickets.”

“10. That Harry Watkins neglected his duty in that no proper investigation on the part of said Harry Watkins as chief of police, or on the part of said police department at said Harry Watkins’ direction, was ever made in connection with the following events: The breaking and entering of George White’s garage. Breaking and eritering of Frank Schick’s Buick garage. Breaking and entering Seaman’s Appliance Store. Death of Clarence Shreves. Breaking and entering of Commonwealth Loan. Breaking and entering Central Drug Store.

‘ ‘ 11. That at least two police officers reported to Harry Watkins that ‘Trouble’ Perry was illegally selling intoxicating liquor, that no warrant was issued and no arrest made. ’ ’

“15. That Harry Watkins removed the daily report and record books of the police officers so that they can no longer check the past actions of known offenders, that Harry Watkins removed the stubs of traffic violations so that officers can no longer check the frequency of violations or who is delinquent, that said books and stubs were not removed until Robert Drury (stale examiner) was in Cambridge.

“16. That Harry Watkins has on numerous occasions used vulgar and obscene language in referring to members of his department.”

“18. That on Thursday, February 12, Harry Watkins caused members of the Cambridge police force to be used to watch certain other members of said Cambridge police force, and in so doing neglected his duties to the city of Cambridge in that during the time said police were so used, a valid police call went unanswered. ’ ’

“22. That information was given to Harry Watkins that gambling laws were being violated at McCoul’s Pool Room, and no investigation was made by said Harry Watkins.

“23. That information was given to Harry Watkins that minors could buy intoxicating liquor in all permit places except Christine Spaid’s in the city of Cambridge; that said Harry Watkins, made no investigation of said charges.

“24. That said Harry Watkins delayed an investigation of unlawful conduct on the part of the operators at the Pastime Billiard Hall until such time as the-operators ceased their unlawful conduct and removed evidence of such conduct. Said Harry Watkins being fully advised of the nature and extent of such conduct before and during said delay.

“25. Said Harry Watkins directed police officers not to remove a telegraph ticker from the Pastime Billiard Hall, having been fully informed that said ticker was used in connection with unlawful gambling conducted on the premises of said Pastime Billiard Hall. That said police officers did remove said ticker to the city building as part of the evidence collected during an investigation of unlawful conduct on the part of the operators of said Pastime. Said Harry Watkins negligently permitted the release of said ticker to the Western Union and refused and/or neglected to treat it as the instrument of gambling which he well knew it was being used for in the Pastime Billiard Hall.

“26. That said Harry Watkins caused charges growing out of said investigation of the Pastime Billiard Hall to be disposed of without presenting the evidence required by the arresting officers and any hearing, or before any court.

“27. That said Harry Watkins gave a statement to the Daily Jeffersonian in connection with an investigation of unlawful gambling at the Pastime Billiard Rail, which statement appeared in the October 21, 1947, issue; which article tended to discredit patrolmen Albert Dusz, Vernon Gable, and Herbert Lyons, and the said Harry Watkins said, ‘The affair was not a raid.’ Said Harry Watkins stated ‘The three patrolmen acted on their own accord, said visit was not ordered by headquarters, it was carried out without the aid of a search warrant,’ all of which statements tended to discredit said patrolmen in the performance of their sworn duty.”

“37. That said Harry Watkins assaulted a citizen of the city of Cambridge in the municipal building of said city, the time not being known to informant. Said Harry "Watkins did so by striking said citizen in the face. Said citizen was not at that time nqr later arrested in connection with any violation on his part.”

The civil service commission, on consideration of the evidence, sustained the removal of the appellant as chief of police. Thereafter appellant appealed to the Court of Common Pleas of Guernsey County and proceedings were had in pursuance to Section 486-17a, General Code, which reads as follows:

“The tenure of every officer, employee or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employee or subordinate may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.

“In all cases of removal the appointing authority shall furnish such employee or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employee or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee or subordinate shall be filed with the commission. Any such employee or subordinate so re-, moved may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the' date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, dis-affirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; provided, however, that in the case of the removal of a chief of police or chief of the fire department or any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the Court of Common Pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission.”

The courts have on several occasions passed upon the construction of Section 486-17a, General Code, as to the power of the court on appeal.

We find in the case of Hawkins v. City of Steubenville, 134 Ohio St., 468, 17 N. E. (2d), 641, the syllabus thereof, as follows:

“Upon appeal by a police officer of a municipality, from a decision of a municipal civil service commission affirming an order of a director of public safety removing such police officer, the power of the Court of Common Pleas is confined by Section 486-17a, General Code, to the rendition of a judgment of affirmance or disaffirmance in toto, and the court is without authority to modify the same.”

Also, in the syllabus in the case of Kearns v. Sherrill, City Manager, 137 Ohio St., 468, 30 N. E. (2d), 805, we find the following:

“1. Under the provisions of Section 486-17a, General Code, a member of a police or fire department removed from his position has a right of appeal from the order of a municipal civil service commission to the Court of Common Pleas.

“2. The jurisdiction of the Court of Common Pleas in such case is special and limited, by the terms of the statute, ‘to determine the sufficiency of the cause of removal.’ Where facts which constitute ‘sufficiency of the cause of removal’ are established by the evidence and found by tbe court, tlpe trial judge may not arbitrarily reinstate such officer to his position and restore his emoluments of office from the date of his discharge on the ground that in his opinion the punishment prescribed is too severe and he is without authority to modify it. ’ ’

From those authorities it is clear that the jurisdiction of the Common Pleas Court in such a case is to find either that the facts constituting sufficiency of the cause for removal are sustained or not sustained, and that the court can only remove said officer or reinstate him.

■ - A ele novo hearing was had before the Court of Common Pleas in this case, during which hearing the court, as shown by the record, dismissed charge No. 25, and upon completion of the hearing the court in its opinion used the following language: “Those charges to which the commission sustained the motion to dismiss will not be considered by the court for the reason that the court refused to admit any evidence thereon.” The court determined that the cause for the removal of appellant, as chief of police, was shown to be sufficient and affirmed the decision of the mayor and civil service commission.

Thereafter the appellant appealed to this court upon questions of law and for his assignments of error says:

“1. That the final order of judgment or decree is not sustained by sufficient evidence, is manifestly against the weight of the evidence, and is contrary to law.

“2. That there were irregularities in the proceedings of the court, apparent bias on the part of the court, and abuse of discretion, by which the appellant was prevented from having a fair trial.

“3. That there were errors of law occurring at the trial and excepted to by the appellant, and namely: error in the admission of evidence offered by the adverse party and objected to by this applicant; error in the rejection of evidence offered by this appellant; error in overruling the appellant’s motion for a new trial; error in overruling the appellant’s demurrer to the introduction of evidence of charges numbered six, seven, nine, thirteen, twenty-seven, thirty-two, and thirty-four; error in overruling the motion of the appellant to dismiss all charges made at the conclusion of the plaintiff-appellee’s case; error in permitting the introduction of evidence on charges dismissed by or withdrawn before the civil service commission in the city of Cambridge.”

The appellee had the legal right to' file assignments of error as to the holding of the court below in dismissing certain charges herein referred to, but did not do so, and this court will give no consideration to the charges so dismissed by the court below. For authority of this we cite Section 12223-21a, General Code, Avhich became effective September 21, 1945 :

“Assignments of error may be filed on behalf of an appellee Avhich shall be passed upon by a reviewing court before a judgment or order is reversed in whole or in part. The time within which assignments of error on behalf of an appellee may be filed shall be fixed by rule of court.”

This court has carefully read all the evidence introduced in the court below and carefully examined the exhibits attached to the record.

The record in this case shows that an ordinance was' passed by the city of Cambridge on July 1, 1940, relative to parking meters and the penalty for parking in violation of such ordinance. This ordinance provides a penalty of not less than $1 nor more than $40.

The mayor at that time established a rule in regard to violations, and proAtided that if a ticket was left on any automobile, which was notice that there was a violation of the parking law, the offender could take this ticket to the police station and upon depositing 25 cents in a tin can there would be no further proceedings relative to such violation. This practice continued from the time such ordinance became effective until the appellant was removed as chief of police. This procedure was neither suggested nor made by the appellant herein, and in fact, the arrangement made, by which 25 cents could be paid as a donation and upon doing this there would be no prosecution, was a complete violation of the ordinance. There was no authority in law or any ordinance under which such procedure could be established.

In a consideration of charges Nos. 1, 2, 3, 4, 5 and ■6, we find from the record the following facts: The tickets placed upon the automobiles were brought by the owners of such automobiles to the city hall and they placed 25 cents in a tin can which was closed with paper tape, and it was marked on the ticket paid and left for the chief of police to pick up. No receipts were issued for these payments. The stubs were collected by the chief of police and matched from the officer’s tablet, and after the drawer became full of these tickets they were destroyed. This was a custom established and followed by the mayor since the passage of the ordinance relating to violation of parking laws.

After April 1947, a receipt system was established. The record clearly shows that the chief of police on various occasions objected to the system and requested that a receipt system be established. At times members of the fire department would take care of the matter when there was no policeman in the office.

The procedure as to the payment of this donation of 25 cents is very clearly explained by the testimony of a witness whose name is Willetta Frame, which was that violators could put their quarters in the can in the mayor’s office, which can was on the top of his desk. It was available to anyone that came in the office and frequently there would be no one in the office so that anyone could walk in and pick up the can if they wanted to. The examiner from the state auditor’s office made no examination relative to these donations until after a receipt system was established. It was the custom, after the drawer became full of these stubs, to destroy them after a checking by the chief of police.

State examiner John Powelson stated that it was not the policy of the city of Cambridge to treat these collections for meter violations as fines, but to co-mingle such funds with parking meter collections. The appellant did not institute this system and was not responsible for its maintenance, and there is evidence in the record that he never removed money from the meter-violation can without checking the money against the meter violation summonses.

We find a very elaborate explanation of the procedure, as shown by the testimony of Willetta Frame, who at one time was clerk to the mayor and is now clerk of council. Since she is a disinterested witness this court gives credibility to her testimony, which testimony is corroborated by patrolman Albert Dusz. There is no substantial evidence that there was any shortage of the money in the can, and if there was any evidence of such shortage, there is no proof as to any one taking money from the can for his own personal use, since at least 100 people had access thereto. The only exception to the shortage relates to $2.50, which shortage was found by the appellant and he made this amount up out. of his own pocket. There is no substantial evidence that the appellant herein appropriated for his own use any money from these donations.

As to charge No. 10, we find from the evidence that the appellant herein did investigate the ■ burglary at the Buick Garage, which occurred in June 1947. Two officers were assigned to make an investigation of this burglary and the appellant personally made an examination of the premises to aid him in the investigation and ivas assisted by a member of the highway •patrol.

As to the investigation' of the death of Clarence Shreves, the record shows that the appellant personally made an investigation of this case; that he visited the hospital and talked to a witness; and that there is no substantial evidence to sustain any of the various items under charge No. 10.

As to charge No. 11, the record shows that the appellant made an investigation relative to “Trouble” Perry, Avho was reputed to be a bootlegger. The record shows that some woman informed Lieutenant Carpenter that her husband was buying liquor from “Trouble” Perry, Avhich liquor was being sold illegally by him, and the reason there Avas no prosecution for illegally selling liquor was due to the fact that the police Avere unable to secure any evidence of anyone buying liquor from “Trouble” Perry.

As to charge No. 15, the evidence shows that the report books were removed from the place they were formerly kept and placed in the safe by the appellant but were at all times available to officers upon their request. The appellant’s testimony in regard thereto is borne out by the testimony of patrolman Lyons, who said that these report books were made available to him Avhen requested of the appellant.

As to charge No. 16, various members of the police department testified that the appellant, at a police meeting on November 9, .1947, used the expression, “If you sons of bitches don’t like it you can throw your badges on the table.” Mayor Ross, who was present at this meeting, stated that he did not hear the expression used and never heard the chief swear at any officers individually or as a group, and Vcryl Stone, city editor of the Jeffersonian, who was also present at this police meeting, did not state that any such language was used by the appellant at such meeting.

As to charge No. 18, there is evidence in the record that the appellant and a patrolman by the name of Dusz did investigate to determine whether patrolman Gable was not on his beat during his time of duty. This was a perfectly legitimate investigation, for under the rules no patrolman is permitted to be off his beat at any time without permission and patrolman Gable at the time of this investigation was outside his beat while on duty. This court is of the opinion it was the duty of the chief to make an investigation and find out whether a patrolman was Outside his beat during his period of duty.

As to charge No. 22, the record shows that the chief did personally instruct officers to investigate complaints that were filed with the department, and on occasions assigned a plain clothes man to check the places, and that McCouPs Pool Room was one of the places to be investigated.

Relative to charge No. 23, the record shows that the appellant specifically instructed officer Harding, who was a plain clothes officer, to make an investigation of the liquor spots in the city, to see that they adhered to the law with respect to the sale of liquor to minors; that patrolman Harding made an investigation and reported to the appellant; and that as a result of Harding’s investigation appellant requested members of the police force to watch liquor establishments.

As to charge No. 24, this court finds there is ample evidence in the record to show that the appellant cooperated with members of the department in arranging a raid on the Pastime Billiard Hall and made a diagram of the pool room; that the raid was called off at the' suggestion of patrolman Dusz, who stated he had information that gambling had ceased for the time being; that appellant, specifically instructed patrolman Dusz to watch the Pastime and as soon as gambling commenced to make an arrest.

As to charge No. 25, we find that there is some testimony in regard to this charge. However, as we have hereinbefore stated, said charge was dismissed and it was not proper to hear testimony on this charge after the' same had been dismissed. However, since evidence was introduced, this court has examined the record and finds that the mayor, before whom this matter was heard, ordered that the ticker be returned to the Western Union.

As to charge No. 26, the operators of the Pastime entered a plea of guilty and there was no reason for the introduction of any evidence. The court made disposition of the ticker.

Charge No. 27 was relative to a statement- by appellant to the reporter for the Daily Jeffersonian, found in the paper of Tuesday, October 21, 1947, in which he said:

“Police Visit Place and Cite Seven to Court

“Seven men were under orders to appear in Mayor Vern F. Ross’ court, at 10 a. m., Wednesday, after three city policemen ‘visited’ rooms at the rear of the Pastime pool room, 744% Wheeling ave., and confiscated materials said to be used in ‘playing the horses.’

“Police Chief Harry W. Watkins said the affair was not a ‘raid.’ The officers, patrolmen Albert Dusz, Vernon Gable and Herbert Lyons, entered the place, saw what was going on, confiscated evidence and cited the men, described as two operators and five ptayers, into court, the chief said. The three patrolmen acted on their own accord, Chief Watkins stated. The visit was not ordered by headquarters and it was carried out without the aid of a search warrant, according to the chief.”

It is the opinion of this court that that was an indiscreet statement by the appellant. However, he made a statement, printed in the Jeffersonian two days later, on October 23, 1947, in which he used the following language:

“Law Enforcement Head Declares He Is ‘Against All Gambling.’

‘ ‘Declaring that he is ‘against all types of gambling,’ Police Chief Harry W. Watkins said Thursday that his statement earlier this week regarding the citation of Pastime pool room operators for promoting a scheme of chance was misconstrued by a number of Cambridge citizens.

“It is the duty of all members of the Cambridge police department to make periodic checks on pool rooms and other establishments to determine whether the law is being violated, Chief Watkins said, and it was one of these visits that disclosed the scheme operating at the Pastime.

“Because I said ‘the visit was not ordered by headquarters’ I received about ten telephone calls asking me if I was in favor of gambling, the chief stated. I am not in favor of gambling in any form and, furthermore, it is not necessary for a raid, or visit, or whatever it may be called, to be ordered by headquarters.

“Patrolmen Albert Dusz, Vernon Gable and Herbert Lyons acted on their own initiative by visiting the Pastime. They were doing their duty, and in the future the same practice will be followed whether or not the orders originate in headquarters. If an officer sees a holdup or any other crime being committed,, he doesn’t wait for orders from headquarters. The same action applies to gambling.”

By-reason of this second statement of the appellant,, we do not believe that he intended in any way to discredit the patrolmen in the performance of their duty..

As to charge No. 37, relative to an assault made by the- appellant, we find by the record that a man by the name of Sherrard was mayor at that time. This-incident occurred in 1940. This court can not conceive-of the appellant slapping the face of Frank Clark without some cause. In an examination of the testimony, it is disclosed that Frank Clark had a considerable police record and had served time in the penitentiary,, and the appellant herein thought that Clark was about-to attack the mayor when he slapped him on the face. This court is of the opinion that that would be a reasonable act on the part of the appellant to prevent Frank Clark from assaulting the mayor.

There is some evidence in the record as to fishing poles and fishing tackle found in the private office of appellant, which appellee claims was taken from a stolen car and kept by appellant. None of the charges-against the appellant before the Court of Common Pleas makes any claim about the action of appellant, in regard to these articles and should not have been considered by the Court of Common Pleas. However, since mention is made about it in the brief of counsel for appellee, this court, upon examination of the record, finds that appellant once wrote a letter to the-owner of said stolen car, -about the contents thereof, and received no reply from him. It would seem to us-that if appellant intended to keep this property he-would have taken it to his home, as it - is customary to-keep the property belonging to other people in the office of the chief of police until the owner proves his title to such property.

We find from the record that these charges against the appellant were prepared by various members of the police department, who were dissatisfied with conditions. The rules and regulations of the police department, which are a part of this record, provide that if any member of the police force has -a grievance, he shall specifically state it to the chief of police. The mayor, who removed the appellant, admits in his testimony that he did not have personal knowledge of all the charges and that he received the charges from the members of the police department, who were dissatisfied with conditions.

Prior to the charges being filed against the appellant, seven of these policemen filed their resignations, to become effective upon a certain date, but after the charges were filed against the appellant they withdrew their resignations.

It is apparent from this record that gambling has been a matter of controversy. The mayor, safety director, chief of police and members of the police department are jointly responsible for the enforcement of the law in the city of Cambridge. Gambling has become a national racket. The United States Senate has recognized this fact and is about to make an investigation in regard to it. The government in the city of Los Angeles has almost broken down by reason of the racketeering in gambling operations.

If the judgment of this court is unreversed it is our suggestion that the members of the police department, the safety director, the mayor and the appellant herein forget the past and jointly co-operate in the enforcement of the laws, keeping in mind that no individual, class, or group, can rightly claim to be immune from the law.

In conclusion, it is the opinion of this court, from a complete examination of this record, that there is some evidence of inefficiency on the part of the appellant, but there is not sufficient evidence of a substantial and probative nature to support the charges made against him or to justify his removal from office.

For these reasons the judgment of the Court of Common Pleas is reversed and it is the order of this court that the appellant be reinstated as chief of police of the city of Cambridge and that he be restored to all legal rights he has lost by reason of his removal.

Judgment reversed.

Montgomery, P. J., and Putnam, J., concur.