Fraternal Order of Police Youngstown Lodge No. 28 v. Hunter

360 N.E.2d 708, 49 Ohio App. 2d 185, 3 Ohio Op. 3d 252, 1975 Ohio App. LEXIS 5911

• Court: Ohio Court of Appeals
• Decided: April 16, 1975
• Docket: 73 C. A. 24
• Status: Published

Opinions

Donoerio, J.

This is an appeal by the defendants, Jack C. .Hunter, Mayor, city of Youngstown, and the Youngs town Civil Service Commission, hereinafter referred to as appellants.

Appellee Carmen Agnone, a maintenance employee of the Youngstown Municipal Airport in the classified service of the city of Youngstown, and the Fraternal Order of Police, Lodge No. 28, filed a complaint seeking to have the court declare the rights of civil service employees with regard' to Rule IV, Section 9(F), of the Youngstown Civil Service Commission; asking the court to issue a temporary restraining order against those who would terminate the employment of any employee who failed to execute an affidavit regarding his residence; and, for a second cause of action, praying for a declaratory judgment as to appellees’ rights and duties as to residency under the applicable laws of the state and rules and regulations of the Youngstown Civil Service Commission; and for a finding and declaratory judgment that the rule of a Civil Service Commission requiring residency of a tenured Civil Service employee is invalid.

After a hearing on the temporary restraining order, such was granted, and on April 11, 1973, the matter was brought to trial before the court.

The rule at issue, which was adopted January 20, 1972, provides as follows:

“Any officer or employee not residing within the city limits of Youngstown, except as otherwise provided in Rule IV, Section 5, is subject to dismissal from service of the city.”

The trial court found that there being no rule as to residency prior to January 20, 1972, those employees of the city of Youngstown who entered the classified service prior to January 20, 1972, were not required by the rule of the Youngstown Civil Service Commission to maintain residency in the city of Youngstown; therefore, such rule was not enforceable against any employee entering the classified service prior to January 20, 1972.

The court also found that the rule was unconstitutional and void for the reason that it was retroactive in its operation, and further that the constitutionality of the rule depended on whether or not it was a reasonable rule, and that any regulation which serves to restrict the exercise of a constitutional right of freedom of movement across frontiers, unless shown to promote a compelling, governmental interest, is unconstitutional. The court found that the defendants did not produce any evidence of any kind from which the court could determine the reasonableness of the rule, and that since no evidence was produced to support the reasonableness of the rule, the court said that the burden of the defendants was not sustained in showing the compelling governmental interest that required a classified employee to be a resident of the city of Youngstown as opposed to his right to exercise his choice of a place to live. The court found, in the absence of any evidence, that under the constitution of the United States the rule attempting to be enforced was an unconstitutional interference with the rights of employees. It found Rule TV, Section 9(F), of the Civil Service Commission to be unconstitutional and void for the following reasons:

“1. It is retroactive in its operation.

“2. It is unreasonable because it violates the rights of the individual guaranteed by the' Fifth Amendment of the Constitution of the United States.” -

It is from this holding and order of the trial court that appellants bring this appeal.

Appellants assign five errors, the first of which states as follows:

“The trial court erred in finding that Section 733.68, Ohio Revised Code, does not apply to a police officer.”

R. C. 733.68, states, in pertinent part: '

“* * * [E]ach officer of a municipal corporation * * * shall be an elector of the municipal corporation ***.”■

■ At the trial below, the appellants argued that a police officer was an officer of the municipal corporation, and, therefore, must be an elector of that municipal corporation. The court was correct in rejecting the appellants’ argument.

An examination of R. C. 733.68 indicates that the term “officer” as used in that section denotes elected officials and appointees other than police officers. In State v. Byomin (1958), 106 Ohio App. 393, the court, regarding R. C. 733.68, stated at page 397 as follows:

“We do not believe this section applies to police officers of a village or to a deputy marshal. The officer designated in this section- refers to others than police officers * *

■ We find no error in the court’s ruling regarding appellants’ first assignment of error, and this assignment of error is, therefore, overruled.

Appellants’ second assignment of error states as follows:

“The trial court erred in its finding that Youngstown Revised Code of Ordinances, Section 32.04 has no application to the issue at Bar notwithstanding its former decision in Kissos et al. v. City of Youngstown, et al.”

The thrust of appellants’ second assignment of error is that the court erred in the instant case in construing Youngstown Revised Code of Ordinances Section 32.04 as being in conflict with the rules of the Civil Service Commission of the city of Youngstown. Further, appellants’ contention is that the Youngstown City Council has the power and authority to require residency as a condition of employment and provide dismissal for the failure to comply with residency requirements. This question was previously adjudicated by the trial court in another case known as Kissos et al. v. City of Youngstown, Mahoning County Common Pleas Court Case No. 195308. In the Kissos ease and the instant case, the court’s reasoning as to the city ordinance conflicting with the civil- service rule and its authorities for such reasoning are as follows: The lower court held that the Youngstown City Charter precludes City Council from prescribing qualifications for employment and grounds for termination of employment.

Section 52 of the Youngstown Charter provides in pertinent part as follows:

“All of the provisions of the Revised Code of. the State of' Ohio relating to Municipal Civil .Service are hereby adopted and made a part of this Charter * *

The citizenry of Youngstown, by approving that provision, expressed a desire to adopt the state civil service laws. It is well-settled that when a municipal charter adopts by general reference the state laws on any subject, the laws become a part of the charter.

In Reed v. City of Youngstown (1962), 173 Ohio St. 265, the syllabus states as follows:

. “1. Because of section 52 of the Youngstown charter, the general statutes of the state relating to municipal civil service, as existing at any particular time, represent a part of the Youngstown charter'at that time even though those statutes may be identified as parts of the Bevised Code.

“2. No ordinance can conflict with the provisions of a city charter and be effective.

“3. An ordinance requiring retirement of classified civil service employees of a city at 65 years of age conflicts with provisions in a city charter to the effect , that the tenure of every employee in the classified service of a city shall he during good behavior and efficient service.” (Emphasis added.)

In State, ex rel. Gerhardt, v. Krehbiel (1974), 38 Ohio St. 2d 90, the syllabus states as follows:

“Where a municipal charter prescribes the manner for removal of municipal officers, any attempt by the municipality’s legislative body to remove an officer in a manner at variance or in conflict with the charter’s directives is a nullity. ’ ’

Appellees point out that the state statute governing the tenure of civil service employees provides that tenure shall be “during good behavior and efficient service.” Significantly, this does not mandate a residency requirement. The Youngstown City Charter adopted the state statute in regard to civil service employees, thus permits only the Civil Service Commission to provide for rules and regulations that govern tenure and termination of employment. Appellees also point out that there is no significant difference between an ordinance which fixes a mandatory retirement age. and one which imposes residency requirements. Each improperly attempts to add another eondi tion for which a civil servant can be terminated. Each attempts to add a third qualifier to the statutory “during good behavior and efficient service”; consequently, each conflicts with R. C. 143.27 as adopted in the Youngstown City Charter.

We hold that the trial court properly concluded that the Youngstown City Ordinance imposing residency was in conflict with the City Charter and was consequently invalid. Appellants’ second assignment of error is overruled.

Passing over the appellants’ fourth assignment of error momentarily, since this assignment is the heart of the instant case, we come now to appellants’ fifth assignment of error, which states as follows:

“The trial court erred in overruling appellants’ motion to dismiss plaintiff-appellee, Fraternal Order of Police, Youngstown Lodge No. 28, as a party to this action.”

Appellants contend that the trial court should not have permitted the Fraternal Order of Police to participate in this litigation. They contend that the association does not have an interest in the proceedings and should not be allowed declaratory relief. This assignment of error is without merit. 16 Ohio Jurisprudence 2d 583, Declaratory Judgments, Section 5, states as follows:

“In other words, the basic purpose of the act is to relieve parties from acting at their peril in order to establish their legal rights. ’ ’

We find that the Fraternal Order of Police Association was a proper party in the court below. We, therefore, overrule appellants’ fifth assignment of error.

Appellants’ fourth assignment' of error, which poses the most difficult question, states as follows:

“The trial court erred in its finding that Rule IV, Section 9 (F) duly promulgated by the Youngstown Civil Service'Commission is void and unconstitutional.”

■ The trial court in addressing itself to the question formulated by this assignment of error posed two issues to be decided:

. “1. Is Rule IV, Section 9(F), adopted Jan. 20, 1972 operative as against civil service employees who entered the classified service of the city prior to Jan. 20, 1972, that being the date of adoption of said Rule.

“2. Does the Rule violate the due process clause of the Fifth Amendment of the United States Constitution.”

The first issue brought forth the question of the retroactive application of Rule IY, Section 9(F); and the second issue brought forth the question of constitutionality of the rule.

The city of Youngstown and its employees are in a unique situation relative to the question of residency requirement. As discussed previously herein, the city of Youngstown had no valid residency requirement because of the conflict with the Charter and the lack of power of the police chief to promulgate such a requirement so that the question arising in relationship to retroactivity is unique only to the instant case under its facts.

The trial court’s opinion as to the issue of retroactivity of the Civil Service Commission’s rule was as follows:

‘ ‘ Coming now to consider the first of said issues, certain constitutional provisions and limitations must' be considered.

“Article n, Section 28 (1851), Constitution of Ohio provides as follows:

“ ‘The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts* * *.’

“The words, ‘retrospective’ and ‘retroactive’, as applies to laws are synonymous. Yery early in our history, Justice Story, in the case of Society for the Propagation of the Gospel v. Wheeler, et al. (1814), 22 Fed. Cases, Page 756, Case No. 13156, reported by 2 Gall 105, defined the term, ‘retrospective’.

, ■ “In -that ease, the Constitution of New Hampshire came into question. In the 23rd Article of the Bill of Rights of that Constitution is the following declaration:

“ ‘Retrospective laws are highly injurious, oppressive, and unjust. No: such laws, therefore, should be made either for the. decision of civil causes or the punishment of offenses.'

: “‘Justice Story defined ‘retrospective’ as follows:

“ ‘Upon principle, every statute which takes away or impairs vested rights acquired under existing- laws, or creates-a new obligation, imposes a new duty;-or attaches a new disability,- in respect -to transactions or considerations already past, must be deemed retrospective, and-this doctrine seems fully supported by the authorities.’

“The Supreme Court of Ohio, and its lower courts, have consistently followed the definition of Justice Story. (Rairden v. Holden, 15 O. S. 207 at 210; Miller v. Hixson, 64 O. S. 39; Sylvania Buses v. Toledo, 118 O. S. 187 at 198; Wheatley v. A. I. Root Co., 147 O. S. 127, Syl. 2.)

■ “It-has been-held that a retroactive-enactment, extinguishing a'Vested legal relationship, would'^amount to deprivation of property without due process of law, and thus violates the 14th Amendment of the Constitution of,the United- States. (Euclid v. Zangerle, 145 O. S. 433.)

• ‘‘The Supreme Court of Ohio succinctly defined ‘retroactive’laws as follows:

“ ‘ A statute which creates a new obligation in respect' to transactions or considerations already past is violative of Article II, Section 28 of the State Constitution, which forbids the enactment of retroactive laws by the general assembly-.’ (Safford, Supt. of Ins., v. Metropolitan Life Ins., 119 O. S. 333 (1928).)

)“The foregoing interpretation of the term ‘retroactive’ or‘retrospective’ has been followed, generally, in the United-States. (Neild v. District of Columbia, 110 F. 2d 246, 254; State, ex rel. James, v. Mills, Del. Ct. in Banc, 57 A. 2d 99, 102; London Guarantee & Accident Co. v. Pittman, 25 S. E. 2d 60, 65, 66; Wilson v. Greer, 151 P. 629, 632.)

“A retroactive statute not only violates the Constitution' of Ohio,.but also violates Article I, Section 10, of the United States Constitution, which is as follows;

“ ‘No state shall * * * pass * * * law impairing'the obligation of contracts ***.’ =

‘‘The above limitation upon the states by'the Fedéral Constitution applies to municipal ordinances and administrative regulations having the force and operation of statutes. (221 U. S. 400; 271 U. S. 403 at 411; 115 U. S. 674; 172 U, S. 1; 202 U. S. 453; 232 U. S. 548; Cuyahoga River Power Co. v. City of Akron, 240 U. S. 462 (1916).)”

. The trial' court noted that the rule as to residency by the Civil Service Commission prior to the adoption of Rule IV,= Section 9 (F) on January 20, 1972, was Rule No. 7,. which states as follows:

“Applicants must be citizens of the United States. For positions in the City service, applicants must have resided in the City of Youngstown at least one year last past.”-.

The trial court concluded that Rule No. 7 was the only valid rule in force as to the residency for the classified em-, ployees of the city of Youngstown, and it held' that those employees who entered the classified service of the city of Youngstown prior to January 20, 1972, were not

required by the rules of the Civil Service Commission to maintain a residence in the City of Youngstown. The court further held that the rule was not enforceable against any employee entering service before January 20, 1972.

We hold.that the attempted enforcement of this rule by the Civil Service Commission against employees hired prior to January 20, 1972, was retroactive in operation, and find that the trial court ruled correctly on this issue.

We come now to the constitutionality of Rule IV, Section 9(F), enforcing a residency requirement upon classified employees of the city of Youngstown with the alternative of facing termination of employment if the employee does not comply.

The appellants’ argument in this regard is that there is no vested right of a city employee to employment; that such rule is reasonable and it is a proper function of the Civil Service Commission to promulgate such a rule; ;that it does not unreasonably deprive appellees of liberty or property; and that such a residency requirement has been determined: ttf be both reasonable and necessary for the preservation of the municipality.

. We note that there is a division of authority as! to a government’s power to promulgate residency requirements. This division-of authority develops oftentimes from the unique situation of the particular facts of cases being decided and also because of the tests applied by the courts in their reasoning as to the validity or invalidity of such rules. For example, see Fugate v. City of Toledo, United States District Court for the Northern District of Ohio, Western Division, No. 73-251, unreported, decided in 1974. The Fugate Court had before it the question of residency requirements of the members of the Toledo Police and Fire Departments. The court chose to use the test as to the validity of the Toledo Charter provision requiring residency, known as the “rational basis” test, and upheld the requirement of - residency, on the basis that the rule showed a rational relationship to a valid state purpose. There are other cases, -the majority of which deal with safety forces, police and firemen, that do not use a standard to follow to determine the validity of ordinances and civil service rules as to residency other than whether or not the municipality or civil service commission has the power to so regulate. The cases that hold that the municipality or the Civil Service Commission has the right to regulate by providing residency requirements are Detroit Police Officers Ass’n. v. City of Detroit (1971), 385 Mich. 519, 190 N. W. 2d 97, and Hattiesburg Firefighters Local 184 v. City of Hattiesburg (Miss. 1972), 263 So. 2d 767. The Detroit Police Officers case and the Hattiesburg Firefighters case do not refer to a test-or standard to be applied in determining the constitutionality of ordinances or regulations relative to residency requirements.

Another case that permits residency requirements Ector v. City of Torrance (1973), 10 C. 3d 129, 109 Cal. Reptr. 849, held that a statute in California prohibiting residency requirements for city employees was not applicable to a charter city, and that a charter provision requiring residency was not unconstitutional.

In Abrahams v. Civil Service Comm. (1974), 65 N. J. 61, 319 A. 2d 483, the Supreme Court of New Jersey held that the right to live outside of city boundaries was subordinate to rational policy to restrict employment to residents. In the Abrahams case the strong dissent interprets Shapiro and Maricopa County, infra (United States Supreme Court cases), as controlling, and uses the “compelling governmental interest” standard. Other courts used the test of “compelling governmental interest” standard.

We do not have guidance from the Ohio Supreme Court, since no cases were found by this court, nor were any brought to our attention by the litigants herein. There is an Ohio Court of Appeals Case, Quigley v. Blanchester (1968), 16 Ohio App. 2d 104, that holds: ■

“A municipal ordinance which requires members of the police department to reside in or within two miles of the municipality is a reasonable exercise of the police power of such municipality and is not violative of the Ohio Constitution.”

This case deals with a non-charter village, and some facts therein are at variance with the instant case. Furthermore, this case does not give an adequate disposition of the question of retroactivity.

The eases using the “compelling governmental interest test” have made a determination as to the interest that-the employees have in their employment and the constitutional right involved holding that any infringement on this right must be first shown by the state to be of a compelling governmental interest in order for the infringement to be upheld. The “compelling interest” standard is more strict in interpreting the constitutional validity of these statutes or rules than the “rational basis” test.

In Donnelly v. City of Manchester (1971), 111 N. H. 50, 274 A. 2d 789, headnotes 4, 7 and 8 of 274 A. 2d state:

-. 4. “Right of every citizen to live where he chooses and to travel freely not only within state but across its borders is fundamental right guaranteed both by state and federal Constitutions.”

■ 7.“ Fact that there was no constitutional right to work for city did not mean that granting of privilege of working for city could be conditioned upon, surrender of fundamental constitutional right of citizen to live . where he chooses.”

8. “Discrimination against some in public employment can no longer, be practiced on basis that the employment is a privilege which can be withheld from all.”

The court stated, at page 51, 274 A. 2d at 791:

“The right of every citizen to live where he chooses and to travel freely not only within the state but across its borders is a fundamental right which is guaranteed both by our own and the Federal Constitutions [sic]. Ratti v. Hinsdale Raceway, 109 N. H. 270, 249 A. 2d 859 (1969); Shapiro v. Thompson, 394 U. S. 618, 89 S. Ct. 1322 (1969).”

In Hanson v. Unified School District No. 500 (D. Kan. 1973), 364 F. Supp. 330, headnotes one through five state:

1. “School teachers alleging that regulation of school district requiring that teachers in district reside in county in which district was located constituted state action infringing upon their constitutional rights stated cause of action cognizable under Civil Rights Act. 42 U. S. C. A. Section 1983; U. S. C. A. Const. Amend. 14.”

2. “When called upon to decide whether law or regulation denies equal protection, court looks to character of classification in question, individual interests affected by classification, and government interests asserted in support of classification. U. S. C. A. Const. Amend. 14.”

3. “Right to work for living in common occupations of community is secured by Fourteenth Amendment. U. S. C. A. Const. Amend. 14.”

4. “Availability of governmental benefit, such as employment, may not be made to depend upon whether benefit is characterized as ‘right’ or as ‘privilege.’ U. S. C. A. Const. Amend. 14.”

5. “Teachers, by signing contracts with school district containing provisions that they must live within county where school district was located, did not voluntarily waive their right, to exercise constitutional rights to live and work where they chose. U. S. C. A. Const. Amend. 14.”

The cases that referred to the test to-be used as the “compelling governmental interest test” followed the United States Supreme Court case of Shapiro v. Thompson (1969), 394 U. S. 618, in which paragraph five of the syllabus states:

“In moving from jurisdiction to jurisdiction appellees were exercising a constitutional right, and any classification which penalizes the exercise of. that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.”

Shapiro struck down durational .residency requirements as being discriminatory and unconstitutional, but indicated that not all durational requirements, would be unconstitutional if the state could show a compelling governmental interest in infringing upon the freedom :of travel of the individual.

In Memorial Hospital v. Maricopa County (1974), 415 U. S. 250, 39 L. Ed. 2d 306, headnote 1 of 39 L. Ed. states:

“A state statute requiring a year’s residence in a county as a'condition to an indigent’s receiving nonemergeney hospitalization or medical care at the county’s expense is repugnant to the equal protection clause, since such a durational residency requirement creates an invidious classification that impinges on the right of interstate travel by denying ■ basic necessities of life to newcomers where the state fails to show a compelling state interest in such a classification nor demonstrates that in pursuing legitimate objectives, it has chosen means which do not unnecessarily impinge on constitutionally protected interests.”, •

A thorough discussion of this matter is found' in Krzewinski v. Kugler, Jr. (D. N. J. 1972), 338 F. Supp. 492. This was a United States District Court case involving a New Jersey statute providing for residency requirements. The following statement is from page 497'

“Recently, however, the Supreme Court has made fairly clear that when the differentiation adversely affects other fundamental constitutional rights, the, test to be applied is much more' stringent. The statute may be upheld only if the state is able to demonstrate a compelling;interest in maintaining the difference in treatment between the classes. Graham v. Richardson, 403 U. S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971); Shapiro v. Thompson, 394 U. S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Sherbert v. Verner, 374 U: S. 398, 406, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963); Bates v. City of Little Rock, 361 U. S. 516, 524, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960).”

In its determination as to the police and firemen residency requirements, the court used the stringent test of “compelling governmental interest.” However, in Krzewinski the court found from evidence in the record that it was sufficiently demonstrated by the state of New Jersey that there was a compelling governmental interest in requiring police and firemen to adhere to a residency requirement and upheld the New Jersey statute. In applying the stringent “compelling governmental interest test,” the Krsewinski case relied on the Shapiro case and, at page 498, explained the interest that government employees have in their jobs, as follows:

“ ‘It would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.’ King v. New Rochelle, supra 442 F. 2d at 648 (footnote omitted). The soundness of this conclusion is even more apparent when it is considered together with the refusal of the Supreme Court in Shapiro to link the right to travel with any specific clause of the Constitution, commerce or otherwise. Shapiro v. Thompson, supra 394 U. S. at 730, n. 8, 89 S. Ct. 1322. See Graham v. Richardson, 403 U. S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971).”

We find that the better test to be used in determining the instant ease is that of the “compelling governmental interest” as in the Krzewinski case. We now look to the instant case to determine what evidence the Civil Service Commission produced to support a compelling governmental interest theory, and find that there is absolutely nothing in the record to sustain this position. We note this was the finding of the trial court in its reference to the record where, on page 8 of its judgment entry, the trial courtstated:

“It has been determined that any classification which serves to penalize the exercise of a constitutional right, unless shown to be necessary to promote a compelling gov ernmental interest, is unconstitutional. (Shapiro v. Thompson, 394 U. S. 618 at 634.)

The Court further stated:

“The defendants produced no evidence of any kind from -which the Court could determine the reasonableness of this Rule. Reasonableness is a matter of fact, and must be proved by evidence. No evidence having been produced to support the reasonableness of said Rule, the Court must assume that the reasonableness of said Rule could not be sustained by the defendants. There must be some relationship between the work required of a classified employee, and the necessity of his being a resident of the city of Youngstown in order to do that work. The city or the Civil Service Commission has produced no evidence on this issue.

“The Court, therefore, finds, in the absence of any evidence which should have been produced on the issue, that under the Constitution of the United States, the Rule sought to be enforced is an unconstitutional interference with the rights of an individual.”

Even though the Civil Service Commission did not produce evidence in the record as to “compelling governmental interest” regarding the residency requirement for policemen we must be realistic as to the question of whether or not a residency requirement for policemen will meet' the strict test of compelling governmental interest, and we find that the lower court could have taken judicial notice of the nature and type of duties evolving around a policeman. The job of a policeman has distinguishing characteristics from all other city employees as was stated in Detroit Police Officers Ass’n v. City of Detroit (1971), 385 Mich. 519, 522, 190 N. W. 2d 97, 98:

“There is a special relationship between the community policed and a policeman. A policeman’s very presence, whether actually performing a specified duty during assigned hours, or engaged in any other activity during off-duty hours, provides a trained person immediately available for enforcement purposes.

“Policemen are required by department order to bé armed at all times, and why is this? Simply because by such requirement they are, no matter where they are or what they are doing, immediately prepared to perform their duties. They are charged with law enforcement in the city of Detroit, and obviously must be physically present to perform their duties. The police force is a semi-military organization subject at all times to immediate mobilization, which distinguishes this type of employment from every other in the classified service.”

We therefore hold, with regard to police officers, that the lower court erred in its ruling that the residency requirement by the Civil Service Commission was unconstitutional as to policemen who were hired after the passage of the Civil Service Commission’s Rule IV, Section 9 (F), on January 20, 1972. We sustain appellants’ fourth assignment of error only to the extent that it declares the Civil Service Commission rule unconstitutional as applied to policemen hired after January 20, 1972. By taking judicial notice of the duties of policemen, and finding the existence of a “compelling governmental interest,” we hold the Civil Service Commission rule constitutional only so far as it is applied after its effective date of passage.

We have taken judicial notice that there is a compelling reason to require safety personnel to reside within the proximity to their duty station. At the same time, we apparently have exempted a major portion of the police force from the application of the Civil Service residency requirement, effective January 20, 1972. The judicial exemption is not a wholesale release. There is statutory recognition that a policeman or fireman beyond his or her normal work may be called upon for “emergency special duty assignments.” (R. C. 737.07.) The very word “emergency” connotes an unseen situation but one demanding reasonably immediate attention. Each policeman or fireman is required as part of his or her duties to be reasonably available to execute duties during such an “emergency;” The execution of these emergency duties is not a geographical measurement but, rather, a reasonably timely performance. The Youngstown Safety Forces certain ly have enough experience whereby it could be reasonably determined, timewise, as to how soon a member of the police or fire department should be able to answer an “emergency assignment.” The promulgation of this time factor as a rule or regulation would insure proper protection for the city and at the same time protect against abuses and misunderstanding. Enforcement would arise out of R. C. 737.12, as a “reasonable and just cause.”

Concluding, then, that every citizen has a fundamental right to live where he chooses in addition to the right to travel freely within the state and across its borders, which is protected by the United States Constitution, a residency requirement imposed by a municipality or civil service commission on its employees must meet the test of “compelling governmental interest.” This is not to say that a municipality or civil service commission cannot show a “compelling governmental interest,” but the burden is upon the municipality or commission to establish such. City employees are performing various duties, as varied as ther'e are departments within the municipality, such as the case' of appellee Agnone, at the Youngstown Airport, operated by the city of Youngstown outside of the city’s territorial limits. Water department employees install and maintain water lines that extend into the township and even across county borders. Safety forces perform a unique service to the community. Some of these services may be shown to have a “compelling governmental interest” that requires, a residency condition with their employment, but there must be some basis established by facts to arrive at this conclusion. In the instant case, it was necessary that the appellants establish these kinds of facts in the record. As the lowef court found, there were no such facts established by the appellants as to municipal employees other than those discussed above relative to policemen.

■ The record indicates as to the appellee, Carmen Ag-none, that his residence out of the city limits is closer-tó his pláce of employment at the Youngstown Municipal Airport than if he had lived within the city limits, -and there was no evidence of any nature to show the. compelling im terest of .the city in enforcing the residency requirement on. this appellee.

We, therefore, find that the city of Youngstown and the Youngstown Civil Service Commission have failed to produce evidence of a “compelling governmental interest” and did not meet their burden to support their claim or requirement of residency of these classified civil service employees other than as to policemen after the date of passage of the civil service rule (January 20, 1972). We sustain appellants’ fourth assignment of error as to policemen as discussed above and overrule this assignment of error as to appellee Agnone.

Judgment affirmed in part and reversed in part.

O’Neill, J., concurs. Lynch, P. J., concurs in part and dissents in part.