City of Elkhart v. Minser

• Decision Date: 12 January 1937
• Docket Number: 26739.
• Citation: 5 N.E.2d 501,211 Ind. 20
• Parties: CITY OF ELKHART v. MINSER.
• Court: Indiana Supreme Court

5 N.E.2d 501

211 Ind. 20

CITY OF ELKHART v. MINSER.

No. 26739.

Supreme Court of Indiana

January 12, 1937

Appeal from Circuit Court, Marshall County; Albert B. Chipman judge.

Hawley O. Burke, of Elkhart, for appellant.

Harman & Wider, of Elkhart, for appellee.

TREMAIN Chief Justice.

This is an appeal from a judgment of the Marshall circuit court ordering the appellant to reinstate the appellee to his former position as a fireman in the fire department of the City of Elkhart. The appellee has filed a petition to dismiss the appeal. The cause has been fully briefed, both upon the motion to dismiss and upon the merits.

The appellee was employed as a member of the fire department of said city until December 3, 1935, on which date he was suspended for violation of rule No. 6 promulgated by the department, which prohibited the wife of a fireman from engaging in any employment. Also, charges of misconduct were filed against him. A hearing was had before the board of public works and safety pursuant to chapter 282, Acts 1935 amending section 48-6105, Burns' Ann.St.1933, section 11478, Baldwin Ind.St.1934. The 1935 act made provisions for filing charges against firemen and policemen and for a hearing before the board. This was done, and upon a hearing the appellee was discharged on December 17, 1935. On January 8, 1936, he filed a complaint against the City of Elkhart in the Elkhart circuit court, charging that for many years he had been continuously employed as a regular member of the fire department; that his services were satisfactory until he received notice from the chief of the fire department that he was discharged in December, 1935. The complaint alleged the nature of the charges filed against appellee, his hearing and discharge upon the ground that he was a married man whose wife was employed in a local factory in violation of said rule No. 6; that no evidence was introduced before the board of any other violation of official duties, or conduct unbecoming a member of the fire department; that the order discharging him on the ground that his wife was employed was of no effect null, and void, and was 'unlawful, arbitrary unreasonable, capricious, corrupt, fraudulent, and was rendered in bad faith and in gross abuse' of the board's discretion. The prayer was that the court order the board to reinstate appellee to his position in the fire department, and for all other proper relief.

Upon filing the complaint a summons was issued, returnable January 20, 1936. The cause was venued on motion of appellant to the Marshall circuit court, where the issues were closed and the case tried by the court. A finding and judgment were entered for the appellee.

The finding of the court included a recital of many facts, among which the court found the allegations of the complaint to be true; that the plaintiff was duly employed as a first-class fireman and a member of the fire department of the defendant, City of Elkhart; that he was suspended by the chief of that department, and, upon charges being filed against him, the plaintiff appeared before the board and a hearing was had; 'that the only evidence introduced was to the effect that plaintiff was married and that his wife was employed as a director of personnel and office manager by a dress factory at the same time that plaintiff was acting as such fireman aforesaid'; that on June 19, 1935, the chief of the department notified appellee 'that the board of public works and safety request, that the wife of a city fireman shall not work or be employed at any occupation while such city fireman is in the employ of the city'; that such order was not promulgated by the board of public works and safety, nor was a resolution adopted by that board promulgating said order until December 3, 1935, about the time the appellee was dismissed.

The court found that the order discharging the appellant was based solely upon the fact that his wife was working in violation of said order of June 19; that upon a statement of the record and facts, the rule concerning the wife's working was 'void, illegal, made in gross abuse of discretion and capricious and a rule bearing no reasonable relation to plaintiff's fitness for holding his position as a fireman, and that his discharge was and is illegal and void.' It was ordered by the court that the order of dismissal of the board of public works and safety of the City of Elkhart be set aside, and said board was ordered and directed to reinstate the appellee to his former position, and that the plaintiff recover costs.

The motion for a new trial, based upon the ground that the decision of the court is not sustained by sufficient evidence and is contrary to law, was filed and overruled. The appeal was perfected, and the appellee has filed his petition asking that the appeal be dismissed for the reason that this court has no jurisdiction, because the statute provides that the judgment of the circuit court shall be final.

In support of the motion to dismiss, the appellee cites and relies upon chapter 282, Acts 1935, which provides for a hearing before the board of public works and safety, pursuant to which statute the appellee was dismissed from the fire department. The statute provides that any member of the fire or police force 'shall have the right to appeal to the circuit or superior court of the county'; that 'such appeal shall be taken by such party filing in such court within thirty days after the date such decision is rendered, a bond as herein required and a...