Town of Speedway v. Nilson
| Decision Date | 30 October 1979 |
| Docket Number | No. 2-378A87,2-378A87 |
| Citation | 182 Ind.App. 620,395 N.E.2d 1292 |
| Parties | TOWN OF SPEEDWAY, Appellant-Defendant, v. John NILSON, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Daniel D. Johns, Henry C. Ryder, Roberts, Ryder, Rogers & Neighbours, Indianapolis, for appellant-defendant.
Thomas A. Deal, Barteau & Deal, Speedway, for appellee-plaintiff.
On July 9, 1976, Officer Nilson was suspended from the Town of Speedway Police Force without pay for a period of thirty days (from July 6, 1976 to August 5, 1976), pursuant to a ruling of the Board of Police Commissioners. Nilson was found guilty after a hearing held on July 9, 1976 of neglect of duty and insubordination to his ranking officer. Nilson appealed the suspension to the Marion Superior Court. The trial court overruled Speedway's Motion to Dismiss which alleged failure to state a claim upon which relief could be granted and lack of subject matter jurisdiction and reversed the Board's decision. It ordered Nilson be credited for the thirty days suspension, be reimbursed for that period and his personal record be expunged of all references of the suspension. Speedway appeals from this judgment, claiming the following: (1) since Nilson was suspended for a period not in excess of thirty days, he had no right to appeal under the provisions of Ind.Code 19-1-25-1 which permits appeals when the suspension of a town police officer exceeds thirty days; and (2) the evidence before the police board was sufficient to support the suspension. Because of our decision on the first issue, the second need not be discussed. We reverse.
DECISION:
The Speedway Board of Police Commissioners was created in accordance with Ind.Code 19-1-25-1 which provides for the establishment of town boards of police commissioners and its authority to discipline police officers for cause is granted in Ind.Code 19-1-25-2, which provides in pertinent part:
"Such commissioners shall have the power for cause assigned on a public hearing and on due notice according to the rules to be promulgated by them to remove or suspend from office, or for a definite period, deprive of pay any member or officer of the police force: Provided, however, That any member of such police force who shall be dismissed or suspended therefrom for any period in excess of thirty (30) days shall have the right to appeal to the circuit or superior court of the county in which such town is located from such decision of dismissal or suspension by said board, all as provided in chapter 282 (Ind.Code 18-1-11-3) of the Acts of 1935 of the General Assembly of the State of Indiana. . . . "
(Our emphasis.)
Nilson contends the following provision of Ind.Code 18-1-11-3, 1 then in effect, is controlling in this case:
"Any member of such fire or police force who is dismissed from such force, as aforesaid, or Is suspended therefrom for any period in excess of ten (10) days shall have the right to appeal to the circuit court or superior court of the county in which such city is located, from such decision of dismissal or suspension by said board, but shall not have the right of appeal from any other decision. . . . "
(Our emphasis.)
Prior to 1971 this section allowed for judicial review of suspensions greater than thirty days. Thus, Nilson argues that the reference in Ind.Code 19-1-25-2 to Ind.Code 18-1-11-3 incorporates not only the procedural appellate provisions, but also the substantive right of judicial review including the "in excess of ten days" provision in the 1971 amendment.
Speedway contends that (1) Ind.Code 19-1-25-2 restricts appeals to "in excess of thirty days" and (2) since Nilson was suspended for a period of exactly thirty days, he was precluded by statute from seeking judicial review of his suspension.
Incorporation by reference, as used in the statute pertinent to the instant case, in a valid legislative technique.
"It is well settled that one statute may adopt another, by specific and descriptive reference thereto, and the effect is the same as if the adopted statute had been written into the adopting one, but when so adopted, only so much of the adopted act is in force as is applicable thereto." Indiana Alcoholic Beverage Commission v. Baker (1972), 153 Ind.App. 118, 286 N.E.2d 174, 182.
The question here is not whether portions of Ind.Code 18-1-11-3 have been incorporated in Ind.Code 19-1-25-2 but, rather, which provisions have been so incorporated.
We first note that some or all of the provisions and rights of Ind.Code 18-1-11-3 have been incorporated into statutes dealing with cities of differing sizes in various manners: 2
1. Ind.Code 19-1-3-2, pertaining to cities of the fifth class and the suspension of firemen and policemen incorporates Ind.Code 18-1-11-3 as a whole including amendments as follows:
2. Ind.Code 19-1-31.5-17, dealing with second-class cities located in a county with a population between 160,000 and 180,000 also incorporates Ind.Code 18-1-11-3 including amendments, as follows:
"
3. Ind.Code 19-1-29.5-24, a 1971 Act concerning second-class cities located in counties with a population between 110,000 and 125,000, also incorporates the rules of procedure and right of appeal provisions in Ind.Code 18-1-11-3 but restricts the right of appeal to a suspension in excess of ten days which is consistent with the present provisions of Ind.Code...
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Gallagher v. Marion County Victim Advocate Program, Inc., 2-777-A-292
...the Legislature is aware of existing law on the same subject. Schrenker v. Clifford, (1979) Ind., 387 N.E.2d 59; Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292. Thus, a proper approach in seeking legislative intent is to consider the history of law on that subject. Harris v. Muncie, (......
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Gerhardt v. City of Evansville
...and remanded for proceedings consistent with this opinion. CHIPMAN and MILLER, JJ., concur. 1 The City cites Town of Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292 in support of its argument. In Town of Speedway the officer appealed on the basis of the statute. He apparently did not p......
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State ex rel. Dunlap v. Cross, 3-579A125
...are eminently reasonable and beyond constitutional attack." (Emphasis supplied) Finally, the Court of Appeals in Town of Speedway v. Nilson (1979), Ind.App., 395 N.E.2d 1292, recently addressed this issue. It decided that police officer Nilson did not have the right to appeal his suspension......
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