Bole v. Civil City of Ligonier

• Decision Date: 28 April 1961
• Docket Number: No. 1,No. 19122,19122,1
• Citation: 174 N.E.2d 412
• Parties: Elmer BOLE, Appellant, v. CIVIL CITY OF LIGONIER, An Indiana Municipal Corporation, Appellee. STATE of Indiana on the relation of Elmer BOLE, Relator, v. NOBLE CIRCUIT COURT, Glenn E. Thrapp, as Special Judge of the Noble Circuit Court, Respondents. *
• Court: Indiana Appellate Court

Page 412

174 N.E.2d 412

Elmer BOLE, Appellant, v. CIVIL CITY OF LIGONIER, An Indiana Municipal Corporation, Appellee.

STATE of Indiana on the relation of Elmer BOLE, Relator, v. NOBLE CIRCUIT COURT, Glenn E. Thrapp, as Special Judge of

the Noble Circuit Court, Respondents. ^*

No. 19122.

Appellate Court of Indiana, Division No. 1.

April 28, 1961.

Rehearing Denied June 5, 1961.

Albert J. Kuster, Ligonier, Robert J. Parrish, Fort Wayne, for appellant-relator.

John C. Hagen, Ligonier, Merritt Diggins, Kendallville, for appellee City of Ligonier.

MYERS, Judge.

This suit involved the dismissal and removal of one Elmer Bole, appellant and relator herein, from the police force of the City of Ligonier, Indiana, by action of the city's Board of Public Works and Safety. Pursuant to statute, being § 48-6105, Burns' Ind.Stat., Bole filed a complaint in the Noble Circuit Court in which he alleged the order of the Board discharging him was arbitrary, capricious and contrary to law. There was a trial and hearing of the cause before Glenn E. Thrapp, as Special Judge, which resulted in a finding of facts and conclusions of law favorable to the City of Ligonier, and affirming the decision of the Board. Thereafter, relator appealed the decision to this court, which entered an opinion reversing the trial court, holding that the action of the Board in dismissing the relator was arbitrary, capricious and contrary to law, and that the judgment of the court was likewise. Bole v. Civil City of Ligonier, 1959, Ind.App., 161 N.E.2d 189. The cause was reversed, with directions that it be remanded for further proceedings not inconsistent with the opinion. This court denied a petition for rehearing, and, on February 26, 1960, the Supreme Court of Indiana denied a petition to transfer.

The question here presented involves the nature of the 'further proceedings' to be taken by the trial court. On February 1, 1961, the relator filed his verified petition with this court wherein he stated that he had attempted to have the trial court enter a judgment in the cause reinstating him to the police force and ordering the Board to pay him his salary and wages withheld during the time of the appeal, but that the court had failed to do so to his damage. He asked that a writ of mandate be issued against the Noble Circuit Court and Glenn E. Thrapp, Special Judge, respondents herein, requiring them to obey the decision of this court, and to enter an order reinstating him as a member of the Ligonier police force, and requiring the Board to pay him salary and wages from and after February 4, 1956, the date of his discharge, and asked that the respondents show cause why such a judgment should not be entered and the writ made permanent.

On February 16, 1961, this court issued its alternative writ of mandate directing the respondents:

'* * * to make and enter a judgment and decree therein reinstating Elmer Bole to his former position as a member of the police force of the City of Ligonier, Indiana, as of February 4, 1956, and an order requiring the Board of Public Works and Safety of the City of Ligonier to pay Elmer Bole all the salary, wages and emoluments of his position from and after February 4, 1956, in the same manner and to the same extent as though such dismissal and discharge had not occurred. Provided, however, that any and all earnings and income from other occupations or employment during the time of his wrongful discharge shall be deducted therefrom. On failure to do so, said Respondents shall file their return, showing any reason in law or in fact why this writ should not be made permanent, on or before the 28th day of February, 1961.'

On February 24, 1961, respondents entered a judgment and order in accordance therewith, and filed their return on February 27, 1961, showing compliance with the writ.

Meanwhile, relator, on February 24, 1961, filed a 'Petition for Rehearing on Mandate,' with brief in support thereof, and an affidavit that copies were mailed to the Special Judge and to the attorney for the Civil City of Ligonier. In it he asserts that this court's mandate was erroneous in that: (1) It was not in conformity with the statute; (2) it was in conflict with a prior ruling precedent of this court; and (3) it injected and applied common-law rules and procedures in a strictly statutory proceedings. He asked that the writ of mandate be set aside and vacated.

Pursuant to the cogent reasoning and authorities presented in relator's brief, and as a result of extensive research on the part of the court, we were convinced of relator's position, and so entered a new order to show cause on April 4, 1961, the pertinent parts of which read as follows

'It Is Further Ordered, Decreed And Adjudged by the court that a writ of mandate be issued by the Clerk of this Court commanding the Noble Circuit Court and Glenn E. Thrapp, as Special Judge, in a certain cause of action pending therein entitled Elmer Bole, Plaintiff, v. Civil City of Ligonier, Defendant, and being Cause No. 17843 therein, to comply with and obey the decision and opinion of the Appellate Court of Indiana heretofore rendered herein, and to make and enter a judgment and decree therein reinstating Elmer Bole to his former position as a member of the police force of the City of Ligonier, Indiana, as of February 4, 1956, and an order requiring the Board of Public Works and Safety of the City of Ligonier to pay Elmer Bole all the salary, wages and emoluments of his position from and after February 4, 1956, in the same manner and to the same extent as though such dismissal and discharge had not occurred. On failure to do so, said Respondents shall file their return, showing any reason in law or in fact why this writ should not be made permanent, on or before the 14th day of April, 1961.'

It is to be noted that the proviso clause concerning the deduction of earnings and income from other employment during the time of wrongful discharge set forth in the writ of mandate of February 16, 1961, is omitted in the writ issued April 4, 1961.

On April 13, 1961, respondents filed their return to the writ in which they respectfully expressed their readiness to comply with any mandate of this court, but requested instructions as to what should be done with the judgment and order previously entered in the Noble Circuit Court, and as to what further action the court should take.

Although this court issued the first writ on February 17, 1961, it was not prohibited thereafter from reconsidering the order issuing that writ. If it is deemed that a writ was improvidently issued it may be revoked. State ex rel. Rooney et al. v. Lake C. C., etc., 1957, 236 Ind. 345, 140 N.E.2d 217.

The action by relator is and was governed from the beginning by § 48-6105, Burns' Ind.Stat., Ch. 86, § 1, p. 577, Acts of the General Assembly, 1933. This is an amendment to the act of 1905, (Acts 1905, Ch. 129, § 160, p. 339), being an act concerning cities and towns. This latter act provided for the tenure of policemen and firemen and causes for their removal. It made no provision for remedial action in the courts in case of wrongful discharge. The act is entirely silent on those matters. Consequently, during the time it was in force, the only remedies available to implement the statute were the common-law remedies of mandate and damages for breach of an employment contract. It was necessary to file an action to mandate a Board of Safety to vacate the wrongful order of discharge and to reinstate the relator as an officer of the police or fire department of the municipality involved. If that action was successful, a second suit had to be filed asking for damages for breach of an employment contract. State ex rel. v. Hulley, Mayor, 1922, 192 Ind. 547, 137 N.E. 177; City of Peru v. State ex rel. McGuire, 1937, 210 Ind. 668, 199 N.E. 151; State ex rel. Shanks v. Com. Council, City of Wash., 1937, 212 Ind. 38, 7 N.E.2d 968.

In the case of State ex rel. Felthoff v. Richards, 1932, 203 Ind. 637, 640, 180 N.E. 596, 597, a complaint was filed in the Vigo Superior Court to mandate the Board of Safety of the City of Terre Haute to set aside and vacate an order discharging the relator from the police force and to reinstate him. The court sustained a demurrer to the complaint for lack of jurisdiction and want of facts. Our Supreme Court reversed the trial court, and, on the subject of jurisdiction, said:

'The gist of appellees' objection on this ground seems to be that the appellant's complaint amounts to an appeal from the action of the board of safety and for this reason the Vigo superior court is without jurisdiction. We quite agree with appellees that there can be no appeal from the action of the board of public safety to the courts; but * * * this is not an appeal but an action in mandate * * *.'

The amendment of 1933 (§ 48-6105) established the procedure, in addition to providing for tenure and causes for removal, by which policemen and firemen who claimed to have been discharged wrongfully could 'appeal' from the decision of the Board of Safety. The statute provides for the filing of a complaint, the issuance of summons, who shall be the defendant, the closing of the issues, who are bound by the judgment of the trial court, burden of proof, the type of finding and judgment which the trial court shall enter, and, finally, the statute expressly provides:

'If such decision be reversed or modified, then such board shall pay to the party entitled thereto any salary or wages withheld from such party pending such appeal and to which he or she may be entitled under the judgment of said court.'

The effect of this amendment has been stated by this...