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City of Toledo v. Klaiber

Court of Appeals of Ohio
Jun 19, 1933
187 N.E. 746 (Ohio Ct. App. 1933)

Opinion

Decided June 19, 1933.

Mandamus — Restoration of discharged police lieutenant denied — Charges presented and heard, and dismissal affirmed by civil service commission — Evidence, sustaining dismissal, not weighed to determine correctness of order.

In an action of mandamus to compel restoration of discharged police lieutenant upon hearing and presentment of charges, the order of dismissal having been affirmed by the civil service commission upon appeal thereto by police officer and the city charter providing that judgment of commission shall be final, where evidence tends to support the charges made against the police officer and his consequent dismissal, this court will not weigh the evidence to determine the correctness of the order made.

ERROR: Court of Appeals for Lucas county.

Mr. Gerald P. Openlander, for plaintiffs in error.

Mr. Harry S. Commager and Mr. N.J. Walinski, for defendant in error.


On December 28, 1932, Harvey Klaiber, as relator, filed his petition in the court of common pleas praying for a writ of mandamus to restore him to membership in the police department of the city of Toledo, "from which he had been dismissed on September 10, 1932." He was appointed a patrolman on December 29, 1915, and by a series of promotions was advanced to a lieutenancy on May 1, 1929, which position he held at the time of his discharge. The court of common pleas allowed the writ as prayed for, and plaintiffs in error now ask this court to reverse the judgment so rendered.

On July 5, 1932, certain charges in writing were preferred against him as to carelessness and inattention in performing his duties in relation to $301, which had been placed in a safe, the door of which was left unlocked by Klaiber, which money when looked for was missing, and on September 9, 1932, further written charges were preferred against him "for conduct unbecoming an officer," charging particularly that he did not testify truthfully as to a certain pseudo journal entry purporting to relate to divorce proceedings filed and pending in the court of common pleas; the journal entry being in fact intended only for the purposes of a proposed mock trial.

The evidence in the instant case shows that Klaiber appeared before the safety director, and testimony was taken on the charges thus preferred against him, the hearings thereon continuing intermittently from July 7, 1932, to and including September 9, 1932. At the conclusion thereof, on September 10, 1932, Klaiber was dismissed from the department. From this order of dismissal Klaiber filed his appeal with the civil service commission. After hearing the evidence there adduced, the commission affirmed the action of the director of public safety. An appeal was attempted to be taken to the court of common pleas, but was abandoned, the action so taken having been dismissed. Klaiber claims, among other things, that the charges were never given to him personally, but the evidence clearly shows that at the very beginning of the hearings, and during their continuance, he had full knowledge thereof, and that at the trial before the civil service commission they were read to him.

We cannot say that there was no evidence justifying the finding of the director of public safety and the consequent order of dismissal. The proceedings had were authorized by the charter of the city of Toledo and by the rules and regulations adopted pursuant thereto. As we view it, an action in mandamus will not lie to vacate the order thus made. Judgment of the court of common pleas is therefore reversed, and the cause is remanded to that court, with directions to dismiss the petition at the costs of the relator.

Judgment reversed and cause remanded.

RICHARDS, WILLIAMS and LLOYD, JJ., concur.


Summaries of

City of Toledo v. Klaiber

Court of Appeals of Ohio
Jun 19, 1933
187 N.E. 746 (Ohio Ct. App. 1933)
Case details for

City of Toledo v. Klaiber

Case Details

Full title:CITY OF TOLEDO ET AL. v. KLAIBER

Court:Court of Appeals of Ohio

Date published: Jun 19, 1933

Citations

187 N.E. 746 (Ohio Ct. App. 1933)
187 N.E. 746
15 Ohio Law Abs. 516