#### Hodapp, Appellee, *v.*Cole, Dir., et al., Appellants.

(No. 3931

— Decided February 14, 1947.)

*Messrs. Hamilton Kramer*and *Mr. W. B. Bartels,*for appellee.

*Mr. Richard W. Gordon,*city attorney, *Mr. Baxter Evans*and *Mr. Robert E. Leach,*for appellants.

*402By The Court.

The appeal is on questions of Law from a judgment of the Common Pleas Court restoring plaintiff to his position as a partrolman in the division of police of the department of public safety of the city of Columbus, Ohio.

The action was in mandamus and was, grounded upon the claim that the plaintiff was discharged from his position as a police officer by a void proceeding, in that the charge against him, the violation of rule 44 adopted by the director, of public safety of the city of Columbus, would not support the action taken. It was further asserted that the charge was not one within the purview of Section 486-17 *et seq.,*General Code, or other provisions of the Ohio Civil 'Service Act or the Charter of the city of Columbus; that by reason of certain acts of defendants during plaintiff’s hearing he was deprivéd of-the opportunity off making a complete record of the proceedings before defendant Charles C. Cole, director of public safety of the city of Columbus; that he was thereby denied an effective appeal to the courts; and that by reason of all of which he has no adequate remedy at law.

The defendants in a joint answer set up chronologically the proceedings incident to the suspension of plaintiff, his hearing, a copy of rule 44 and his order of removal from the service; denied that the absence of the attorney for the plaintiff at the hearing before defendant director of public safety prejudiced plaintiff’s cause; averred that an appeal was taken from the findings and order of discharge of plaintiff to the Civil Service Commission of the city of Columbus, which finding was sustained and an appeal taken to the Court of Common Pleas of Franklin county, and that plaintiff was subsequently dismissed; and specifically denied all matters not admitted.

On the trial of the mandamus action, counsel intro*403ducecl a complete record of the testimony taken at the hearing before the director of public safety.

The trial judge in sustaining plaintiff’s claim and ordering the writ of mandamus in his favor handed down-a-written opinion, the gist of which is that plaintiff by his acts did not violate rule 44. However, the entry journalizing the decision is general in terms and it must be assumed that such entry was responsive to the issues properly joined upon the petition which was based upon the averment that' the order discharging the plaintiff- was void.

The parties are in substantial agreement as to the determinative facts. Plaintiff was at the time of the arrest of one Claude Wesley, and had been for four years prior thereto, a member of the Columbus police force. On the 26th of February 1944, Wesley was picked up as a suspected violator of the federal regulation controlling gasoline stamps. He was apprehended at a filling station and upon Wesley’s repairing to a toilet plaintiff was directed by an officer, Howler, who was with him to accompany the prisoner. Whereupon the prisoner turned over to plaintiff a watch, a diamond ring, and $390 in money. The officer took also the prisoner’s automobile which was afterward delivered to his wife. The prisoner directed the plaintiff to turn over the articles of personal property which had been given to him to the prisoner’s wife. Although the automobile was delivered to the wife, the plaintiff did not give her the other personal property and several days later reported that fact to the prisoner and stated that he was not sure of tlpe identity of Wesley’s wife and, therefore, did not turn the personal property, over to her. The prisoner then instructed the plaintiff to keep it for him. The personal property was held for several weeks and eventually the matter came to the attention of plaintiff's *404superior officer. An investigation was had- and it was then learned what had occurred. Plaintiff at first denied to an inspector that he had any money-of the prisoner but afterward, admitted possession of all the property and it was turned back to the prisoner. Plaintiff claimed that he held the effects to accommodate the prisoner upon the prospect that he would assist legal authorities in running down higher-up violators of the stamp regulation.

Four errors are assigned, to wit:

1. Not finding that plaintiff had a plain and adequate remedy in the ordinary course of the law.

2. That the finding that plaintiff had not violated a rule of the Columbus police department was not a proper basis for- the writ of mandamus.

3. That'the finding that the rule had not been violated is contrary to and against the manifest weight of the evidence.

'4. That the trial court had no jurisdiction to" grant a writ of mandamus as plaintiff did not begin his action in conformity to the mandatory provisions of the General Code of Ohio.

We will not consider the errors assigned in detail or in order but will discuss generally the questions presented.

It is urged by plaintiff that at the time the cause was presented to the Common Pleas Court the parties virtually presented an agreed case, and that whether or not there was conformity with the technical requirements necessary to support an order in mandamus, there was support for the finding made and defendants may not be heard in contradiction thereof in this court.

If the claim of the plaintiff be conceded, which we cannot|do, then the first question arising is, was the judgment supported by a proper finding that the plaintiff did mot violate rule 44.

*405That rule, so far as germane to our question, is:

“Each and every member of the division of police is ordered to promptly deliver to the secretary of police, through the property clerk on duty, any * * * or other articles or thing of value, which has either been found, seized by or delivered to any member of the division of police, * * * or received from any citizen, which is to be held * * * for safekeeping * * V’

Upon the conditions under which the plaintiff received the articles in question, in probability there would have been no violation of the rule had he observed his instructions from the owner. Upon the directions later given him by the owner as to the disposal of the property, it was clearly placed with plaintiff for safekeeping and for no other or different purpose. From that time his retention of the property was a direct and manifest violation of the letter and the spirit of the rule. So that, if the action is to be considered on this appeal as in the nature of an agreed case* then the judgment- was improper and must be reversed because unsupported by the evidence and contrary to law.

But it is urged that the charge against the plaintiff was not a predicate for his discharge from the service of the police department and that, therefore, the hearing and subsequent findings were - void. If this be true, then, without respect to the guilt or innocence of plaintiff of the charge preferred against him, it would be a proper basis of the judgment which is under review:

Section 4382, General Code, authorizes a director, of public safety to make all rules for the regulation and discipline of the police and fire departments, except as otherwise provided in the subdivision in which such section is found. Rule 44 was so promulgated.

*406If the offense with which the plaintiff was charged is within the purview of Section 486-17®, General-Code, then a finding of a violation of such section would support the action taken here. *City of Cincinnati*v. *Gamble et al., Bd. of Trustees,*138 Ohio St., 220, 34 N. E. (2d), 226; *State, ex rel. Daly,*v. *City of Toledo.*142 Ohio St., 123, 50 N. E. (2d), 338. If such charge were properly asserted and the director of public safety acted in relation thereto, he had jurisdiction to make the order and its correctness and validity could be challenged only by appropriate appeal Nto the Civil Service Commission' and thereafter to the courts. That procedure was abandoned by the plaintiff after his first appeal to the Civil Service Commission. Section -486-17®, General Code, provides, among other things, as follows:

“ * * * any such officer, employee [in the classified service] * * * 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.”

We do not have the formal charge against the plain.tiff or the formal finding of the director of public, safety. An examination of the testimony' and statements of the director at ■ the titne the testimony wás taken indicates ’there were charges against the plaintiff other than the violation of rule 44, but apparently by. the pleadings and briefs of counsel the charges wore restricted to the violation of the rule, at least the finding to a determination that the rule had been violated. If so, then there is no specific charge against the plaintiff, based on any ground, as such, designated in Section 486-17®, General Code. If, however, the *407violation of rule 44 may be classified under any one or more of the grounds for removal set out in Section 486-17a, then such violation will meet the intendment of the statute. It is our judgment that the purposes of rule 44 are so manifest and salutary in the proper administration of the police department that its violation may he characterized as neglect of duty or nonfeasance in office.

The plaintiff was accorded a hearing on a charge, the violation of rule 44, and was found to have violated that rule. Such offense, in our judgment, was within the purview of Section 486-17a and supported the action taken against him. See *State, ex rel. Klaue,*v. *Barrett,*22 C. C., 104, 12 C. D., 231; *State, ex rel. Savage,*v. *City of Cleveland,*20 C. C. (N. S.), 250, 31 C. D., 296.

The proceedings had in connection with the charge against the plaintiff were regular and the director of public safety had jurisdiction to hear and determine the cause, and the order made was not void unless the action at the time of the hearing in taking testimony in the absence of counsel for the plaintiff had such an effect. We cannot so find for several reasons: First, the taking of the testimony in the absence of plaintiff’s counsel was not jurisdictional; second, such action was not prejudicial in view of the testimony developed; third, the reco.rd does not support the conclusion that plaintiff’s counsel was lulled into any sense of assurance that no further testimony would be taken in his absence (he merely stated, when attempt was made tp reach him, that he cared to offer nothing further and made no inquiry to learn whether the hearing had been closed on the part of the' city); and fourth, no effort was made of record by counsel for plaintiff to assure his opportunity to cross-examine witness Dowler or to offer any conflicting testimony.

*408It would seem that such opportunity, was open to. counsel because it appears that the director did not announce his decision at the conclusion of the hearing. Finally, the claim that by the action in taking the testimony of Dowler, in the absence'of the plaintiff’s áttorney, plaintiff was precluded from making a- record on appeal is not supported because manifestly such record was available. But even if the testimony had not been taken, the appeal from the decision on the original hearing contemplates a *ele novo*hearing.

Counsel for the parties consider and discuss at length many other legal phases of this appeal. Wé do not discuss them because we do not consider that they are necessary or vital to its determination.

Nor is it within the province of this court to consider circumstances which would extenuate or reduce the punishment of the plaintiff. If the plaintiff was properly found to be a violator of the rule in question, then the , discretion as to his punishment was in the director of public safety and any extenuation or mitigation must emanate from that source.

The judgment is reversed and final judgment entered for defendants.

*Judgment reversed.*

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