Opinion
No. 30470
Decided March 13, 1946.
Mandamus — Payment of pension to municipal policeman — Pleadings admitted relator discharged for habitual nonpayment of debts — Ruling on motions for judgment on pleadings reserved — Relator rested without offering evidence that his discharge not for dishonesty — Burden not on respondents to introduce evidence — Respondents introduced, without identification, exhibits to sustain policeman's discharge by mayor — Identity of exhibits admitted by reply and not challenged for identification — Relator objected only on ground evidence not relevant — Common Pleas Court dismissed petition in mandamus — Court of Appeals, by journal entry, reversed for error in admitting evidence — Error and ground of reversal not stated in mandate — Sections 12223-21 and 12223-39, General Code — Opinion stated competent evidence before mayor did not disclose dishonesty by relator — Judgment reversed by Supreme Court — Holding pleadings showed dishonesty of relator — Respondents entitled to judgment an pleadings — Relator required to establish clear legal right to writ of mandamus — Burden on relator to show that dishonesty not proved by evidence before mayor.
APPEAL from the Court of Appeals of Cuyahoga county.
Relator brought a proceeding in mandamus in which he alleged that he had served the city of Lakewood as a policeman and member of the police department from November 16, 1923, to April 21, 1942, on which latter date he was discharged upon an alleged charge that he habitually contracted debts which he was either unable or unwilling to pay.
Relator alleged that the Board of Trustees of the Police Relief Fund of the city of Lakewood had adopted a code of rules and regulations, Section 4 of which reads:
"Any member who may be discharged from the police department after serving not less than fifteen consecutive years shall be placed on the pension roll at six-sixteenths of his salary at the time of discharge subject to the provisions set forth in Section I of this act, provided that such discharge is for any offense other than dishonesty, habitual intoxication or the commission of a felony for which he has been convicted."
Relator further alleged that upon his dismissal he made application to the board of trustees of such police relief fund for payment of a pension equal to six-sixteenths of his salary at the time of discharge which was $205 per month, but that the board disallowed his application.
Relator alleged that at no time during his service had he been discharged for dishonesty, habitual drunkenness or the commission of a felony.
Relator prayed for an alternative writ and upon final hearing for a peremptory writ requiring the approval of his pension application and the issuance of the necessary orders for the payment of the pension.
Respondents answered admitting all of the allegations of the petition except the one that relator had not been discharged or removed for dishonesty. Respondents further answered alleging "That during the last fifteen years relator's record in the police department has been one of continuous trouble with his creditors; that beginning in 1928 and continuing until his discharge relator's creditors complained and filed statements with the department taking a great deal of the time of the Director of Public Safety and Chief of Police; that in 1930 the Chief of Police wrote letters to creditors and acted as trustee in distributing payments on account regardless of which relator's indebtedness to creditors increased from $352.40 in January to $578.81 in June, 1930; that in 1936 an application for trusteeship was filed listing twenty-seven creditors in the total amount of $520.27; that in April, 1939, relator advised the Director of Public Safety his indebtedness was $320.34 but in June, 1939, relator listed such bills to be $950.64; that shortly thereafter relator's wages were garnisheed for a debt of $102.90 which had not been listed; and that complaints continued until relator's suspension in 1942."
The answer then set out a copy of the mayor's letter of dismissal setting out inter alia checks which had been given on different banks where relator had no account or where relator did not have sufficient funds.
Relator's demurrer to the answer was overruled and relator then filed a reply which reasserted that he had not been discharged for dishonesty; that the checks which had been given on banks in which relator had no funds or in which he did not have sufficient funds were in fact given by relator as notes; and that the findings of the mayor were beyond his jurisdiction.
The matter came on for trial and relator made a motion for judgment on the pleadings. The court reserved ruling thereon pending hearing of the evidence. Thereupon relator rested without having introduced any evidence and respondents moved for judgment on the pleadings. Without passing upon either motion for judgment on the pleadings the court inquired: "Do you plan to introduce any evidence?" The attorney for respondents answered: "I plan to introduce the police rules and the letter of suspension, setting forth the grounds." Whereupon the court said: "Let's do that now. That probably can be done by stipulation. * * *
"The court: All right. Dictate the stipulation into the record. It can all be done by stipulation."
Thereupon the rules of the police department, the letter of suspension and the various checks returned for want of funds were introduced. None of these exhibits were properly identified in the trial court but relator's only objection was on the ground that "they are not relevant in this case." Both sides rested without any evidence having been introduced by the relator. Upon the issues joined the trial court dismissed the petition.
Upon appeal the Court of Appeals by a divided court reversed the judgment of the trial court "for error of law in the admission of evidence."
The cause is here following the allowance of a motion to certify the record.
Mr. Frank G. Mercer, for appellee.
Mr. Charles F. Ross, for appellants.
We agree with the statement of relator in his brief:
"The main issue involved in this case is as to whether or not the charge that relator had habitually contracted debts which he was either unable or unwilling to pay, could or does of itself constitute a charge of dishonesty."
However, we do not agree with the further statement in the brief that The Court of Appeals held that it did not." The court speaks only by its journal and the reason for the reversal given in the journal entry or mandate is: "* * * and the judgment of the said Court of Common Pleas is reversed, for error of law in the admission of evidence and no further error appearing in the record, and this cause is remanded to said Court of Common Pleas for further proceedings."
First, as to the question made by the Court of Appeals journal entry or mandate, we are of the opinion that such ruling was erroneous for two reasons:
(1) There was no burden on the respondents to introduce any evidence;
(2) The identity of the exhibits in question had been admitted in the reply and the exhibits were not challenged for lack of identification. The exhibits were challenged only on the ground that they were not relevant. This issue had been made by the reply which reads:
"* * * That the findings of the mayor as set up by the defendant are outside of the mayor's jurisdiction in this particular case and are therefore not binding upon this relator." This amounted to a confession and avoidance.
There was no denial that the findings were properly set out in the answer. The same may be said of the checks in question. There was no denial but an attempted avoidance was made by the claim that the checks "were in fact given by the relator as notes; and that said checks were written as notes and were not to be cashed by the bank, through the bank, but were to be taken up by him, all of which the parties holding same well knew." It is to be noted That no evidence was offered to sustain this claim of relator.
The rule, Section 4, had been set up in relator's petition. The court had suggested that any facts which the respondents wished to offer could be stipulated and it was pursuant to the suggestion by the court: "Dictate the stipulation into the record. It can all be done by stipulation." No prejudicial error resulted by the admission of any of the evidence. Such evidence on behalf of respondents was unnecessary in the absence of any evidence by relator.
Therefore, the judgment of the Court of Appeals as disclosed by its journal entry and mandate should be and hereby is reversed.
Section 12223-21, General Code, provides in part:
"All errors assigned shall be passed upon by the court, and in every case where a judgment or order is reversed and remanded for a new trial or hearing, in its mandate to the court below, the reviewing court shall state the error or errors found in the record upon which the judgment of reversal is founded."
It cannot be determined from the court's mandate what evidence was held by the Court of Appeals to be inadmissible or whether inadmissible on the ground of lack of identification or lack of materiality.
Section 12223-39, General Code, provides:
"The court of appeals or common pleas court so reversing a judgment, upon the request of either party, shall specify in writing the ground or grounds of such reversal, which shall be filed and kept with the papers in the case."
The transcript of the docket and journal entries discloses the following:
"July 2nd, 1945. Application by defendants-appellees for court to specify in writing the ground or grounds of the reversal and two copies filed.
"July 11th, 1945. Notice of appeal to Supreme Court filed by appellant.
"September 10th, 1945. To Court: The request by defendant-appellee for opinion is overruled. Exceptions. Journal 16, page 185."
However, respondents have printed a majority opinion of the court in which we find the following statement:
"The mayor was not called as a witness in the case. No minutes of the hearing before the mayor of the charges against relator were offered. No one testified who was present at the hearing. No proof was offered that the relator had signed or sent checks and no witnesses attempted to identify his signature. Whether any such proof was offered at the hearing of the charges we do not know. In our opinion, therefore, it was clearly error to admit in evidence the mayor's letter of April 20, 1942, or the five checks as proof of the evidence offered at the hearing of the charges against the relator."
The court's opinion then contains the following:
"It is also our opinion that the charge against the relator that 'he had habitually contracted debts which he either was unable or unwilling to pay' is not the equivalent of a charge of dishonesty. This is the charge of which the relator was found guilty.
"Relator contends that the above facts entitle him to a judgment in this case. They may make a prima facie case but it is our opinion that the defendants, even if the formal charge against relator did not connote dishonesty, had the right to show in this case that the evidence presented at the hearing before the mayor on April 17, 1942, disclosed dishonesty on the part of relator.
"We also believe that no competent evidence that the testimony presented at the hearing of the charges before the mayor, disclosed dishonesty on the part of relator is to be found in the record, and we therefore reverse the case to enable the defendants at another trial to produce such evidence."
The three last-quoted paragraphs of the court's opinion are contrary to the court's journal entry and mandate and in our opinion do not set forth correct principles of law.
A peremptory writ of mandamus will not be granted unless the relator establishes a clear legal right thereto. Relator offered no evidence but relied upon his motion for judgment on the pleadings. It is contended by relator that the admission in the answer "that the original charge against relator was in substance that he had habitually contracted debts, which he was either unable or unwilling to pay" showed that the charge against the relator did not amount to "dishonesty." We cannot agree with this contention.
Webster defines "dishonesty" as follows:
"Want of honesty, probity, or integrity in principle; want of fairness and straightforwardness; a disposition to defraud, deceive or betray; faithlessness, fraud; any deviation from probity."
We are of the opinion that the pleadings showed that the relator stood charged with dishonesty and upon his failure to offer any evidence the court should have sustained respondents' motion for a judgment on the pleadings.
While ordinarily a party does not have to prove a negative, yet in this case in order to show a right to the writ it was necessary for relator to show that his discharge was not due to dishonesty. In other words, the burden was on relator to show that the evidence before the mayor did not show dishonesty.
In his brief relator says: "We frankly admit that if the admissions made in respondents' answer do not make a prima facie case that a finding should be made against relator."
Substantial justice requires that the judgment of the Court of Appeals be and the same is hereby reversed and that the judgment of the Common Pleas Court should be and hereby is affirmed.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.