Baker v. West Carrollton

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State: Ohio

Court: Supreme Court

Docket No: 1991-0889

Case Date: 09/02/1992

Plaintiff: Baker

Defendant: West Carrollton

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Baker, Appellant, v. City of West Carrollton, Appellee.

[Cite as Baker v. West Carrollton (1992), Ohio
St.3d .]
Municipal corporations -- R.C. 737.29 and 737.32 apply to lost

property recovered by police -- Proceeds from sale of

unclaimed property shall be paid to municipal corporation.

R.C. 737.29 and 737.32 apply to lost property recovered by
members of the police force of a municipal corporation
and, if the property is unclaimed, the proceeds from the
sale of such property shall be paid to the municipal
corporation.
(No. 91-889 -- Submitted April 8, 1992 -- Decided

September 2, 1992.)

Appeal from the Court of Appeals for Montgomery County,
No. CA 12150.

Appellant, Charles Baker, is a police officer employed by
appellee, the city of West Carrollton ("the city"). On March
29, 1984, while on duty, Officer Baker discovered a large
number of dimes, quarters, half-dollars, silver dollars, and
gold Krugerrands on a public roadway. Baker notified the
police dispatcher of the find, and other officers were sent to
assist in collecting the coins. The coins were placed in the
custody of the West Carrollton Police Department. The
approximate value of the coins is $70,000. The city advertised
the discovery and requested the true owner submit a claim for
the property. Baker made a formal claim for the coins, which
was denied by the city. No other claims were made.

Baker filed a complaint in the Montgomery County Court of
Common Pleas seeking to enforce his claim. The trial court
entered summary judgment in favor of Baker.1 Upon appeal, the
court of appeals reversed.

The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Don A. Little, for appellant.

Altick & Corwin, Robert B. Berner and Elissa D. Cohen, for
appellee.

Moyer, C.J. R.C. 737.29 and 737.32 govern the

disposition of unclaimed property recovered by members of a
police force. R.C. 737.29 states:

"Stolen or other property recovered by members of the
police force of a municipal corporation shall be deposited and
kept in a place designated by the mayor. Each such article
shall be entered in a book kept for that purpose, with the name
of the owner, if ascertained, the person from whom taken, the
place where found with general circumstances, the date of its
receipt, and the name of the officer receiving it.

"An inventory of all money or other property shall be
given to the party from whom taken, and in case it is not
claimed by some person within thirty days after arrest and
seizure it shall be delivered to the person from whom taken,
and to no other person, either attorney, agent, factor, or
clerk, except by special order of the mayor."

R.C. 737.32 states:

"Property, unclaimed for the period of ninety days, shall
be sold by the chief of police of the municipal corporation,
marshal of the village, or licensed auctioneer at public
auction, after giving due notice thereof by advertisement,
published once a week for three successive weeks in a newspaper
of general circulation in the county. The proceeds shall be
paid to the treasurer of the municipal corporation and be
credited to the general fund."

Baker argues the phrase "other property" in R.C. 737.29
refers only to property recovered in connection with an arrest
and seizure, and asserts his claim therefore must be guided by
the common law. He submits such an interpretation is supported
by R.C. 737.30 and 737.31, which govern the deposit of stolen
property and the disposition of property to claimants, because
these sections refer to the "person arrested" and the "person
from whom" property was taken.

Baker's arguments are not well taken. R.C. 737.29 and

737.32 apply to lost property recovered by members of the
police force of a municipal corporation and, if the property is
unclaimed, the proceeds from the sale of such property shall be
paid to the municipal corporation. While it is true that
certain language in R.C. 737.29, 737.30, 737.31 and 737.32
governs the disposition of seized property, the existence of
such language does not negate application of the statutes to
lost or other property recovered by police officers.

The four statutes at issue address the disposal of stolen,
seized, and "other" property, and distinguish claimed property
from unclaimed property. The treatment of an item of property
depends upon the circumstances under which it comes into police
custody and whether the true owner can be identified. "Seized"
property necessarily comes from a "person arrested" or "person
from whom" it was taken, and the statutes state how it shall be
disposed of. The property in question is "other property,"
"recovered by members of the police force," "unclaimed for the
period of ninety days." As such, the statutes provide that it
shall be sold at public auction with the proceeds paid to the
municipal corporation. Because the disposition of property
recovered by police is controlled by statute, Baker's reliance
on common-law authority is misplaced.

Baker also argues that awarding the property to the city
deprives him of equal protection of the laws as guaranteed by

the United States and Ohio Constitutions. He charges there is
no rational basis for denying a police officer's claim to lost
property where such a claim would be granted had the finder
been a private citizen. Although we note that this court and
other courts have considered similar arguments, see, generally,
Allied Stores of Ohio, Inc. v. Bowers (1959), 358 U.S. 522, 79
S.Ct. 437, 3 L.Ed.2d 480; Hilton v. Toledo (1980), 62 Ohio
St.2d 394, 16 O.O.3d 430, 405 N.E.2d 1047; State v. McKelvey
(1967), 12 Ohio St.2d 92, 41 O.O.2d 372, 232 N.E.2d 391;
Somerset Bank v. Edmund (1907), 76 Ohio St. 396, 81 N.E. 641;
Noble v. Palo Alto (1928), 89 Cal.App. 47, 264 P. 529; Majewski

v. Farley (1922), 203 A.D. 77, 196 N.Y.S. 508, we decline to
address it in light of the fact that Baker failed to present it
for consideration in the trial court or the court of appeals.
Cascioli v. Central Mut. Ins. Co. (1983), 4 Ohio St.3d 179,
180, 4 OBR 457, 458, 448 N.E.2d 126, 127, fn. 2; State ex rel.
Babcock v. Perkins (1956), 165 Ohio St. 185, 59 O.O.2d 258, 134
N.E.2d 839.

For the foregoing reasons, the judgment of the court of
appeals is affirmed.
Judgment affirmed.

Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick,
JJ., concur.
FOOTNOTE:

1 The trial court granted summary judgment in favor of the city on April 16, 1986; however, no final order was filed in the case. The court of appeals therefore dismissed the appeal, but suggested the trial court reconsider its decision. It is from the trial court's subsequent ruling granting summary judgment in favor of Officer Baker that this appeal arises.

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