City of Fort Wayne v. Bishop, 18015

• Decision Date: 03 April 1950
• Docket Number: No. 18015,18015
• Parties: CITY OF FORT WAYNE v. BISHOP.
• Court: Indiana Appellate Court

Page 368

91 N.E.2d 368

CITY OF FORT WAYNE v. BISHOP.

No. 18015.

Appellate Court of Indiana, in Banc.

April 3, 1950.

Opinion Superseded 92 N.E.2d 544.

Case transferred to Supreme Court. See 92 N.E.2d 544.

Harry H. Hilgemann, Fort Wayne, Hayes & Hayes, Fort Wayne, Oliver H. Eggers, Fort Wayne, for appellant.

Parrish & Parrish, Fort Wayne, Ralph J. Miller, Fort Wayne, for appellee.

PER CURIAM.

The judges of this court are of the unanimous opinion that the decision of this appeal is controlled by a ruling precedent of the Supreme Court of Indiana, to wit: Lloyd v. City of Gary, 1938, 214 Ind. 700, 17 N.E.2d 836, which is erroneous. It is therefore ordered that this case, accompanied by the attached written statement of our reasons for such opinion, be and is hereby transferred to the Supreme Court.

Statement of Reasons for Transfer to the Supreme Court

PER CURIAM.

While a member of the police force of the city of Fort Wayne, charges of misconduct were brought against the appellee and, after a hearing before the Board of Public Safety of said city on the 12th day of November, 1948, she was dismissed from service upon the written decision of said board.

Burns' Stat. § 48-6105 provides in part that:

"Any member of such * * * police force who is dismissed from such force, * * * shall have the right to appeal to the circuit or superior court of the county in which such city is located from such decision * * *. Such appeal shall be taken by such party filing in such court, within thirty (30) days after the date such decision is rendered, a bond as herein required and a verified complaint stating in concise manner the general nature of the charges against him or her, the decision of the board thereon, and a demand for the relief asserted by plaintiff. Such city shall be named as the sole defendant * * *. No pleadings shall be required by such city to such complaint, but the allegations thereof shall be deemed to be denied. * * *.

"Any such decision of the board shall be deemed prima facie correct and the burden of proof shall be on the party appealing. All such appeals shall be tried by the court * * * and shall be heard de novo upon the issues raised by the charges upon which the decision of the board was made, which charges shall be deemed to be denied by the accused person. Within ten (10) days after the service of summons said board shall file in said court a full, true and complete transcript of all papers, entries and other parts of the record relating to such particular case * * *. Each party may produce such evidence as it may desire, relevant to the issues, and the court upon such appeal shall review the record and decision of such board."

In all respects agreeable to this statute the appellee appealed from the dismissal order of the board to the Allen Circuit Court and thereafter the appellant filed a transcript in said court containing a copy of all "papers, entries and other parts of the record" of its said board pertaining to the case. The evidence adduced at the hearing before the board, and upon which its decision rests, was not included. In disposing of the appeal the court heard evidence de novo on the issues raised by the charges upon which the decision of the board was made, found for the appellee and adjudged that she be reinstated as a member of the appellant's police force as of November 13, 1948.

As a ground for reversal the appellant contends that the order appealed to the Allen Circuit Court is that of an administrative board and the court's only function was to determine whether the board's proceedings followed the statute and, if so, is its decision reasonable and not arbitrary or capricious? That the procedure before the board is not challenged; that there is ample evidence to support its decision and therefore the court's judgment reinstating the appellee is contrary to law. On the other hand the appellee contends that the statute, upon which this whole proceeding rests, provides for a trial de novo of the questions which were tried by the board and that the court properly decided those questions anew through the same processes as prevailed in the original hearing, except that it was confronted at the outset with the statutory presumption that the decision of the board is correct. That the court having tried the case in such manner and having reached a decision which is amply supported by substantial evidence, such decision cannot be disturbed.

Practically this identical contention was made in Lloyd v. City of Gary, 1938, 214 Ind. 700, 17 N.E.2d 836, 838. In disposing of it the court said:

"This view is not supported by the authorities. In City of Elkhart v. Minser, 1937, 211 Ind. 20, 25, 5 N.E.2d 501, 503, it is held that the so-called appeal to the circuit or superior court is in the nature of an action for a mandatory injunction; that the purpose of the action is to determine the legality of the order made by the Board of Public Works and Safety; that: 'The court will not undertake to control the discretion of such boards in making orders in the administration of the affairs of the state so long as the orders are not tainted with fraud, capriciousness, or illegality.' The Board of Public Works and Safety acts ministerially in determining the questions presented by the charges preferred. The court, on the so-called appeal, which it is noted is commenced by a complaint, acts judicially for the purpose of determining whether the ministerial board acted within its legal jurisdiction.

"When it appears to the court that the evidence before the ministerial board was conflicting, * * * and that there was substantial evidence before the ministerial body justifying its action, there is no illegality, and the determination of the ministerial body should not be disturbed. School City of Peru et al. v. State ex rel. Youngblood, 1937, 212 Ind. 255, 7 N.E.2d 176, 1002, 9 N.E.2d 80."

As we understand the purport of this decision the appeal provided by § 48-6105, supra, is not an appeal but is merely "so-called." Its true nature is that of a mandatory injunction, and this is true, we assume, even though the complaint does nothing more than follow the statute by "stating in concise manner the general nature of the charges against him or her, the decision of the board thereon, and a demand for the relief asserted by plaintiff." The provision of the statute for a jury trial is meaningless because "the issues present questions of law only" and there is no issue of fact to try. By the same token the statutory provision that "All such appeals shall be...