I dissent from the judgment herein entered.
The facts, as shown by the stipulations, the testimony of the relator, and exhibits, show that the relator was employed as a part-time patrolman of the village on September 18, 1950. He became a full-time policeman on December 18, 1950. On January 14, 1952, he was advanced to the rank of captain of police by the chief of police, which advancement in rank was confirmed or approved by the mayor.
Prior to the advance in rank, the village council passed an ordinance creating the office of captain of police and spelling out the duties to be assumed by such officer. The relator was advanced in rank by the authority of this ordinance. It provides that a captain of police shall be appointed from "the full-time regular membership of the police department by the chief of police, with the approval of the mayor, and may be demoted at any time to the full-time regular membership in the department when the chief, with the approval of the mayor, shall deem it advisable for the good of the department * * *."
On March 22, 1960, the relator was relieved of the rank of captain and returned to a full-time policeman in the regular Police Department of Middleburg Heights by order of the chief of police, with the approval of the mayor, upon the authority of the ordinance above quoted. It is the claim of the relator, supported by the judgment of the Court of Common Pleas, that he could not be demoted from the rank of captain and returned to the regular police force as a policeman without charges being filed against him in writing under the provisions of Section 733.35, Revised Code, and a trial had before the legislative authority *Page 363 of the village as provided by Section 733.36, Revised Code.
The power of a village to appoint a marshal (chief of police) and deputy marshals and policemen is provided for by Sections737.15 and 737.16, Revised Code.
Section 737.15 provides that each village shall have a marshal, "designated chief of police, appointed by the mayor with the advice and consent of the legislative authority of the village, who is an elector thereof, and who shall continue in office until removed therefrom as provided by Sections 733.35 to733.39, inclusive, of the Revised Code. * * *"
There is also a provision for an appeal from an order of removal by the decision of the legislative authority to the Court of Common Pleas.
Under the provisions of Section 737.16, the mayor shall, when provided for by the legislative authority of the village and subject to its confirmation, appoint all deputy marshals and policemen. All such officers shall continue in office until removed for cause and in the manner provided by Section 737.15 of the Revised Code.
The appointment of the relator to the rank of captain of police was under the authority of the ordinance, the appointment being made by the chief of police, with the approval of the mayor. The appointment was not made as provided by Section737.16, nor is there an office known as captain of police provided for under that section. Such rank was created by ordinance and did not increase the number of full-time policemen as provided under section one of the ordinance. This ordinance does not provide for the appointment of a deputy marshal. The effect of that part of the ordinance under which relator was given the rank of captain was merely to confer a special status on a full-time policeman appointed by the chief of police, with the approval of the mayor, without competitive examination as would be required under civil service for officers of a city police department. The chief of police, under the authority of Section 737.18, Revised Code, is the executive head of the police department and in that capacity could have directed the relator to perform the extra administrative duties defined by the ordinance without the authority of the ordinance. The conferring of such duties by the ordinance added nothing to the status of the relator as a policeman of the police department of the village. *Page 364
There is a marked distinction between the police department of a city and a village. Their status (policemen of a city) is fixed under separate sections of the Revised Code. Section737.05, Revised Code, provides that the police department of a city shall be composed of a chief of police and such otherofficers, patrolmen and employees as may be provided by ordinance. (Emphasis added.) Section 143.27, Revised Code, as amended (128 Ohio Laws, 1064) effective November 2, 1959 (under civil service), provides:
"* * * In the case of the suspension, demotion or removal of * * * any member of the police * * * department of a city an appeal on questions of law and fact may be had from the decision of the municipal civil service commission to the Court of Common Pleas of the county in which such city is situated. * * *" (Emphasis added.)
In villages (municipal corporations with less than five thousand inhabitants) (Section 703.01), the police department (not under civil service) consists of a chief of police (marshal) (Section 737.15) and deputy marshals and policemen (Section737.16), when provided for by legislative authority, and appointed by the mayor with the approval of the legislative authority. There is no provision indicating any difference in rank between a deputy marshal and a policeman. There is also no provision for "officers" in the organization of the police department of a village, as that term is understood in the organization of a city police department, nor is there any provision in Sections 733.35 and 733.36, Revised Code, for a trial upon charges for a reduction or demotion in rank of a member of a village police department. These sections provide for the removal of an officer from the service if he has been charged with being guilty, in the performance of his official duty, of bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality or habitual drunkenness. The only power of the legislative body, upon trial of charges (when properly presented), if the member of the department is found guilty, is to remove him from service. This clearly indicates that the only distinction in rank in the police department of a village is between the marshal (chief of police) and that of deputy marshals, policemen, night watchmen, and special policemen, when such officers are provided for by ordinance. *Page 365
Under the home-rule amendment to the Constitution, the village was empowered to pass an ordinance conferring additional duties on a full-time policeman appointed to such work by the chief of police, with the approval of the mayor, and to further provide that such appointee may be relieved of such duties and returned to the regular duties of a full-time policeman at the will of the chief of police with the consent of the mayor. If the relator is dependent on the ordinance as the basis for his appointment as captain of police, he must also be bound by its terms as to his removal from such office.
The record shows that the appointment of the relator to the office, created by ordinance, of captain of police was accomplished by following out the requirements of the ordinance — that is that the appointment was made by the chief of police with the approval of the mayor. An exhibit intended to demonstrate the manner of his appointment is in the record in the form of a letter directed to the relator. It is dated March 28, 1952, and presumably signed by the chief of police. The approval of the mayor is indicated, as well as that of the council, by marginal notes. The approval of the council was not required by the ordinance, and the fact that such notation is in the letter is of no significance to the relator's case.
Conceding only for the purpose of considering the law of the case that the appointment of the relator to the office of captain must be construed as making him a deputy marshal (although it is clear from the record that this was not intended) and that there is a difference in the rank of deputy marshal and policeman (no such difference being found in the statutes), upon such contention, and the admitted facts, the relator was never legally appointed to such office.
Section 737.17, Revised Code, provides:
"All appointments made under Sections 737.15 and 737.16 of the Revised Code shall be for a probationary period of six months' continuous service, and none shall be finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the mayor shall transmit to the legislative authority of the village a record of such employee's *Page 366 service with his recommendations thereon and he may, with the concurrence of the legislative authority, remove or finally appoint the employee."
The record clearly shows that the last act of the village authorities (the chief of police, the mayor and the legislative authority) with reference to the appointment of the relator as captain occurred on January 14, 1952, which was the date he was first made captain under the ordinance. No act of final appointment after the probationary period of six months has been taken. The serving of a probationary period and the subsequent final appointment or removal without trial is an absolute requirement for continued tenure of an officer in a village police department, such proceeding being provided without doubt to take the place of civil service requirements as testing the officer's ability to fill such office.
In the case of State, ex rel. DeMatteo, v. Allen, Mayor,170 Ohio St. 375, the relator had been appointed chief of police of the village of Hubbard on October 1, 1956, he having been a patrolman of that village since August 1951. On April 7, 1958, more than eighteen months after his provisional appointment at a regular meeting of the village council, when the question of his final appointment was considered, the mayor refused to recommend his appointment as chief of police under the requirements of Section 737.17, Revised Code. The council of six members was equally divided on the question of giving legislative approval of his final appointment, and the mayor, under Section 733.24, Revised Code, then voted (to break the tie) against approval. The relator sought to compel his appointment as chief of police and his contention, as stated by the Supreme Court was: "* * * that the respondent [mayor] had no right to cast the deciding tie-breaking vote that resulted in the demotion of the relator." On page 380 of the (Per Curiam) opinion, it is stated:
"For those which do not and which elect to remain within the general framework of village government as provided by the general statutes, the General Assembly has established a simple form of government which in large measure revolves around the village mayor. As pointed out, he is, or at times may be, virtually a seventh member of council. That it was intended that the mayor exert a potent force in all police matters in a village *Page 367 is further evidenced by the provision in Section 737.18, Revised Code, that `the marshal shall be the peace officer of a village and the executive head, under the mayor, of the police force.'
"The relator, never having been recommended for permanent appointment as chief of police, has not shown a clear right to the extraordinary remedy of mandamus, and the Court of Appeals properly denied the writ."
Under the law of that case, the relator's claim that he cannot be "demoted" without trial upon charges before the legislative body of the village is without merit. This is the only issue pleaded as the basis of relator's claim, that is that he was not afforded a trial on charges before the council. Under Section 737.17, Revised Code, he was not entitled to such trial even if he was appointed a deputy marshal until he has been finally appointed after his probationary period. As has been indicated, under the undisputed facts of this case, the office of deputy marshal was never created by legislative authority, so that the claim that he was removed from that office without trial is not supported by the record.
The petition does not claim the relator was appointed deputy marshal. The words "deputy marshal" are not found in the petition. The prayer of the petition is as follows:
"Wherefore, relator prays that a Writ of Mandamus be issued, directing the respondent, Andrew Rosbough, to reduce to writing the charges upon which the Relator was demoted from rank of captain to patrolman and to file the same forthwith with the legislative authority of said respondent village, and that the respondents [names of all the councilmen] * * * as the legislative authority thereof, provide the relator with a hearing upon said charges at their next regular meeting, all in compliance with Sections 733.35 and 733.36 of the Ohio Revised Code, together with any and all such other orders and relief as may be proper and necessary in the premises."
Under the undisputed facts, the relator is not entitled to the relief prayed for since he was never legally appointed to any office defined in the statutes other than patrolman, which he now holds under Sections 737.16 and 737.17, Revised Code. The record is perfectly clear that the village authorities never intended to appoint him deputy marshal. They are charged with knowledge of the law. Both the chief of police and the relator *Page 368 had been appointed to their respective offices as provided by Section 737.17. The allegations of the petition are that they were legally appointed. Certainly the mayor and the councilmen would not have neglected final approval as required by law for eight years if they had any notion they were appointing a deputy marshal. They were acting and intended to act under the ordinance and this is the view of the relator as is shown by his petition.
The claim is that the village of Middleburg Heights was not authorized to pass the ordinance creating the office of captain of police and providing for his reduction in rank to patrolman in a manner said to be in conflict with Sections 733.35 and733.36, Revised Code, because the village has not adopted a charter by the vote of the people conferring such authority on the legislative branch of the village. If this be so, as before indicated, the entire ordinance must fall, not just the provisions for demotion of a captain of police appointed under the authority of the ordinance to patrolman by order of the chief of police with the approval of the mayor and without legislative authority, and thus the office of captain of police was never created.
The suggestion that if he were, in fact, appointed as a deputy marshal from the rank of patrolman, his removal as deputy marshal would return him to his former office, is unsound. No such result could obtain where the only provisions of Sections737.16 and 733.36, Revised Code, provide for "removal" not demotion, nor, as has been said, is there any suggestion that the rank of deputy marshal is above that of patrolman. Certainly, one could not hold in abeyance the office of patrolman while holding the office of deputy marshal. There is no legislative authority for such claim.
The relator is still a policeman of the village of Middleburg Heights, and since he has not been removed from that office to which he was appointed under the authority of Section 737.16, Revised Code, the writ seeking to return him to the office of captain of police, which title he held under the ordinance at the will of the chief of police, with the approval of the mayor, should have been denied by the trial court.
For the foregoing reasons, the judgment of the trial court, issuing the writ, should be reversed and final judgment entered for the appellant. *Page 369