Opinion
Nos. 23467 and 23468
Decided November 30, 1932.
Sheriff — Chief law enforcing officer in county, including municipalities and townships — Removal from office for malfeasance — Sections 10-1, 2833 and 13432-1, General Code — Wagering and betting at race tracks authorized and permitted — Sections 18059, 13062 and 13063, General Code — Error proceedings lie from judgment removing officer.
ERROR to the Court of Appeals of Cuyahoga county.
This case arises as an error proceeding to a judgment of the Court of Appeals of Cuyahoga county, which affirmed the judgment of the court of common pleas of Cuyahoga county, issued in the matter of the removal from office of John M. Sulzmann, sheriff of Cuyahoga county, Ohio. The case was heard upon certain complaints filed in the court of common pleas of that county, alleging, in substance, that John M. Sulzmann, as sheriff of Cuyahoga county, Ohio, had refused and willfully neglected to enforce the law, had refused and willfully neglected to perform official duties imposed upon him by law, and was guilty of gross neglect of duty and of misfeasance, malfeasance, and nonfeasance in office, in that the "said John M. Sulzmann, from the 29th day of June, 1931 to and including the 11th day of July, 1931, and on each several day (except the 5th and 10th days of July) during said period of time knowingly permitted, suffered and consented to notorious and open betting, gambling, gaming and the making of wagers for money at a certain race track field in Cuyahoga county, Ohio, commonly known as North Randall Race Track, contrary to the form of Section 13059 of the General Code of Ohio; knowingly permitted, suffered and consented to the notorious and open keeping and operation of a building on the private grounds of said race track field with apparatus, books and other devices for recording wagers upon the result of a trial or contest of skill, speed and power of endurance of beasts, to wit race horses, contrary to the form of Section 13062 of the General Code of Ohio; and knowingly permitted, suffered and consented to the notorious and open sale of tickets representing interests in schemes of chance at said race track field contrary to the form of Section 13063 of the General Code of Ohio; and all against the peace and dignity of the state of Ohio."
The complaint prayed for judgment of forfeiture of office against John M. Sulzmann, and judgment of forfeiture as prayed for was rendered by the court of common pleas.
Motion to certify the record having been filed after affirmance of the judgment of the court of common pleas by the Court of Appeals of Cuyahoga county, the case was admitted to this court.
Further facts are stated in the opinion.
Messrs. Day Day, Mr. Donald W. Kling and Mr. George H. Rudolph, for plaintiff in error.
Mr. Benjamin C. Boer, Mr. J.C. McClelland, Mr. Roy W. Wilt and Mr. L.L. Yoder, for complainant.
It was conceded on trial by the sheriff and his counsel, and is conceded here, that horse racing took place at the places and times alleged in the complaint, and that systematic wagering was conducted in connection with such racing. The sheriff testified that he had knowledge of such racing "just by report, rumor and common knowledge." The sheriff also stated that he issued permits to North Randall, Cranwood, and Thistledown race tracks to operate for a limited time, and refused a permit to other race tracks in Cuyahoga county to operate. His testimony on this point was as follows:
"A. Mr. Alber [chief deputy of the sheriff's office] and myself lengthily, we discussed the three tracks, and likely the other two, and decided as I said to you from the beginning, owing to economic reasons, we favored the Cranwood, Thistledown and Randall tracks.
"Q. And you advised those who made the appeal to you concerning the Brooklyn track they could not run? A. We advised them they couldn't run. * * *
"Q. Well, now, you say you knew of three, which three? A. Randall, Cranwood and Thistledown."
The main defense presented by the plaintiff in error is that it was not the sheriff's duty to interfere with such races, or the wagering and betting connected therewith, because such do not constitute offenses against the "public peace of the county."
The wagering and betting conceded to have existed is illegal in this state under Sections 13059, 13062, and 13063, General Code.
The sheriff is the chief law enforcement officer in the county, with jurisdiction coextensive with the county, including all municipalities and townships. Sewell's Law on Sheriffs, 30; Murfree on Sheriffs, 629, 639, 640.
When the sheriff of Cuyahoga county granted the privilege of operation to three tracks and denied it to other tracks, he assumed a jurisdiction which he now denies, and admitted his understanding of his powers when he said, "As sheriff of Cuyahoga county I can prohibit any horse to run." While the sheriff is not required to patrol his county as a policeman, nor to ferret out crime as a detective, under the conceded facts of this case he committed malfeasance in office, contrary to the provisions of Sections 13432-1 and 2833, General Code, which required him as peace officer to "preserve the public peace." He assumed the power to authorize continued and wholesale violation of Sections 13059, 13062, and 13063, General Code, and did specifically authorize such violation, which constituted an offense against the public peace. People v. Rounds, 67 Mich. 482, 485, 35 N.W. 77; Sewells Law on Sheriffs, 30; Murfree on Sheriffs, 629, 639, 640; Miles v. State, 30 Okl. Cr., 302, 236 P. 57, 44 A. L. R., 129; Scougale v. Sweet, 124 Mich. 311, 82 N.W. 1061; South v. State of Maryland, 18 How. (59 U.S.), 396, 403, 15 L.Ed., 433; State, ex rel. Thompson, Atty. Genl., v. Reichman, Sheriff, 135 Tenn. 653, (rehearing) 685, 188 S.W. 225, 597, Ann. Cas., 1918B, 889; State, ex rel. Sonner, v. Dean, 98 W. Va. 88, 126 S.E. 411.
The question of jurisdiction is completely disposed of in favor of the plaintiff in error by the case of In re Bostwick, Judge, ante, 182, 180 N.E. 713.
Judgment affirmed.
JONES, MATTHIAS, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.
I reach the same ultimate conclusion as the other members of the court, but for different reasons.
I deny the jurisdiction of the Court of Appeals to review the judgment of the court of common pleas, and I deny the jurisdiction of this court to review the Court of Appeals, for the reasons stated in the dissenting opinion in the case of In re Bostwick, Judge, 125 Ohio St. 182, and I therefore affirm the judgment of the court of common pleas.