City of Fort Wayne v. Bishop, 28613

• Citation: 92 N.E.2d 544, 228 Ind. 304
• Case Date: May 16, 1950
• Court: Supreme Court of Indiana

Page 544

92 N.E.2d 544 228 Ind. 304 CITY OF FORT WAYNE
v.
BISHOP. No. 28613. Supreme Court of Indiana. May 16, 1950.

[228 Ind. 306]

Page 545

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.

GILKISON, Judge.

The record indicates that appellee, Marie Bishop, was regularly appointed to the police [228 Ind. 307] force of the City of Fort Wayne during February of 1943 and served in that capacity continuously thereafter until October 13, 1948, when she was suspended by an order of one Lieutenant Lepper. She was dismissed by the Board of Public Safety on November 15, 1948, as of November 12, 1948.

The record indicates that prior to said date charges against her had been filed with the Board of Public Safety of the appellant as follows:

'Department of Police

'Fort Wayne, Indiana

'October 4, 1948

'Chief of Police:

'We arrested one Eucla Thorp, for P. I. at Brackenridge & Lafayette Street and she appeared in City Court on Monday Morning, October 4, 1948. She was found Guilty by Judge Logan, Fined $5.00 and Costs. She asked Judge Logan to use the telephone. The judge told her to sit down and that she could use the telephone after court. She stood in front of the Judges Bench and talked very loud. The Judge again told her to set down and the Thorp woman got more disorderly, and therefore since no one approached to take care of this woman, and Judge Logan said to remove this woman, Officer Horn and I took this woman by the arm and as we led her from the Judges Bench out of the Court Room she became very loud stating she was an American citizen and wanted her American rights. We took her down the hall to the B.O.I. Room and she was still hollering. In the B. of I. Room she jerked away and fell on the floor. (She was not touched or shoved.) We asked Sergt. Paul Clark to go down stairs with us to the womens lock up where we turned her over to the Stationmaster. This woman voluntarily went down the steps and entered the womans cell, however, during her trip downstairs to the cell block she was very loud and disorderly.

[228 Ind. 308] 'Officer Horn and I then came upstairs and reported to Acting Lieutenant Birkenbuel that we had escorted a woman from the court room to the cell block under orders or Judge Logan to remove this woman from the court room. Policewoman Bishop was setting in the court room in front of the Judges Bench, behind the desk, which is the answer we gave Acting Lieut. Birkenbuel, when he asked us where the Policewoman was.

'Signed: Officer Richard J. Fleischman

'Signed: Officer Richard W. Horn'

'Department of Police

'Fort Wayne, Indiana

'October 16, 1948

'Chief of Police:

'On Monday morning, October 4, 1948 at 7:55 A. M., I was instructed by Acting Lieutenant Birkenbeul to assist Richard Morton, Court Bailiff as he had 27 prisoners. Judge Logan had sentenced 11 men and I was ready to take them to the cellblock when I heard Judge Logan sentence a lady. This lady, after being sentenced

Page 546

created a scene and Judge Logan ordered her removed from the court room. After Judge Logan pleaded for someone to remove her from the court room Officers Fleischman and Horn took her from the Court Room. I, as a Sergeant was unable to talk to Policewoman Bishop because I had 11 prisoners in my care. Policewoman Bishop was setting in the rear of the Deputy City Clerk talking to a man during the testimony and sentencing of this case. In my opinion this was a neglect of duty on the part of Policewoman Bishop. After I had turned the 11 prisoners over to the Stationmaster I reported this incident to Acting Lieutenant Birkenbeul.

'Signed: Sergt. Bartels Watson

'Excerpt from minutes of the regular meeting of the Board of Public Safety held October 22, 1948, at 8:00 P. M.'

[228 Ind. 309] The law of Indiana grants tenure status to members of the police force by the first sentence of Section 48-6105, Burns' 1933 Supp. as follows: 'Every member of the fire and police forces, including police radio operators and police signal and fire alarm operators, appointed by the mayor, the commissioners of public safety or the board of metropolitan police commissioners, shall hold office until they are removed by said board.' State ex rel. Felthoff v. Richards et al., 1932, 203 Ind. 637, 641, 180 N.E. 596.

Their removal from the position is provided for by the second and third sentences of said section as follows: 'They may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual place of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board. On the conviction in any court of a member of the said fire or police force, including police radio operators and police signal and fire alarm operators, of any criminal offense, or upon a finding and decision of the board that any such member has been or is guilty of neglect of duty, or of the violation of rules, or neglect or disobedience of orders, or of incapacity, or absence without leave, or immoral conduct, or conduct injurious to the public peace or welfare or conduct unbecoming an officer, or other breach of discipline, such commissioners shall have power to punish the offending party by reprimand, forfeiture, suspension without pay, dismissal, or by reducing him or her to a lower grade and pay.'

[228 Ind. 310] It will be noted that members of the police force may not be removed because of politics, and that 'the written reasons for such removal shall be entered upon the records of such board.' State ex rel. Felthoff v. Richards, supra. The written reasons charged against appellee as entered upon the records of the board, as shown by the transcript of the record made by the secretary of the Board of Public Safety is heretofore copied in this opinion.

It will be noted further that the causes for which a member of the police force may be dismissed or otherwise disciplined are specifically provided for in the third sentence of the statute, as follows: (1) conviction of a criminal offense, (2) neglect of duty, (3) violation of rules, (4) neglect or disobedience of orders, (5) incapacity, (6) absence without leave, (7) immoral conduct, (8) conduct injurious to the public peace or welfare, (9) conduct unbecoming an officer, (10) or other breach of duty. The charge made must be specific as to time, place, and the nature of the offense or offenses charged. In the instant case not one of the statutory reasons for discipline or dismissal was entered in writing upon the records of the board. The nearest approach to it is the written statement of Sergt. Bertels Watson copied above as follows: 'Policewoman Bishop was setting in the rear of the deputy clerk talking to a man during the testimony and sentencing of this case. In my opinion this was a neglect of duty on the part of policewoman Bishop.'

This proceedings is both penal and remedial and is in the nature of a civil action. State ex rel. Bradshaw v. Probate Court, 1947, 225 Ind. 268, 272, 73 N.E.2d 769; Indiana State Board etc. v.

Page 547

Davis, 1917, 69 Ind.App. 109, 118, 121 N.E. 142. It has been said that the term 'penalty' might [228 Ind. 311] be held to embrace all the consequences visited by law upon the heads of those who violate police regulations. It is capable of being construed to extend to all penalties whether exigible by the state in the interest of the community or by private persons in their own interest. 23 Am.Jur. Penalties, § 27 pp. 622-623. 'It is a general rule of statutory construction that penal statutes are to be strictly construed. * * *. They will not be construed to include anything beyond their letter, even though within their spirit. * * * While such a statute must be construed with such strictness as carefully to safeguard the rights of the defendant and at the same time to preserve the obvious...