City of New Haven v. LeFever, 20731

• Decision Date: 08 July 1968
• Docket Number: No. 20731,No. 1,20731,1
• Citation: 238 N.E.2d 487,143 Ind.App. 88
• Parties: CITY OF NEW HAVEN, Indiana, Appellant, v. Russell M. LeFEVER, Appellee
• Court: Indiana Appellate Court

Page 487

238 N.E.2d 487

143 Ind.App. 88

CITY OF NEW HAVEN, Indiana, Appellant, v. Russell M. LeFEVER, Appellee.

No. 20731.

Appellate Court of Indiana, Division No. 1.

July 8, 1968.

Rehearing Denied Sept. 4, 1968.

Arthur H. Fruechtenicht, Robert J. Parrish, Ft. Wayne, for appellant.

Edwin R. Thomas, Wright & Sandler, Ft. Wayne, C. David Peebles, Ft. Wayne, of counsel, for appellee.

FAULCONER, Judge.

This is an appeal from a judgment of the Allen Circuit Court ordering that appellee be reinstated as a member of the police department of Appellant City and ordering the payment of his salary from the date of his discharge. Appellant City filed its petition for rehearing alleging that the court erred in overruling appellant's motion to dismiss the action, that certain findings of fact were not sustained by sufficient evidence, that the court erred in each conclusion of law and that the decision is not sustained by sufficient evidence and is contrary to law. This petition was overruled which action of the court is assigned as error in this appeal.

It appears from the evidence that prior to January 1, 1964, appellee was for approximately 8 years a member of the police force of the Town of New Haven, Indiana. That said town became a city of the 5th class on January 1, 1964, and on said date the new mayor appointed appellee the chief of police; that appellee served in that capacity until December 30, 1964, when the mayor informed him, 'You no longer have a job.' When appellee asked what the charges were the mayor replied, 'There are no charges. You're just automatically out.' On December 31, 1964, appellee delivered a letter to the major stating 'I have not been informed of any charges being filed against me, or have I been informed of a hearing. I offer myself for regular duty as Chief of Police, and or, as a Police Officer of New Haven, Indiana.' Appellee reported for duty at the police station in uniform at 7 a.m. on January 1, 1965. He was advised by the acting chief that he could sit in the office but wasn't to go out in a car. Later in the morning he was informed by the Chairman of the Board of Safety that he was through as a police officer and said chairman also stated that there had been no charges against appellee.

We cannot agree with appellant's argument that the major of a fifth class city and remove a policeman without complying with Acts 1905, ch. 129, § 160, p. 219; 1933, ch. 86, § 1, p. 577; 1935, ch. 282, § 1, p. 1395; § 48--6105, Burns' 1963 Repl. The provisions of that act, commonly referred to as the policeman and fireman's tenure act, were specifically made applicable to fifth class cities by Acts 1949, ch. 71, § 2, p. 194; § 48--6120c, Burns' 1963 Repl., and includes a chief of police by virtue of Acts 1949, ch. 71, § 1, p. 194; § 48--6120b, Burns' 1963 Repl.

Nor can we agree with appellant's contention that the evidence fails to sustain the finding that appellee was a member of the police force of such city or that he was removed from such police force. Appellee testified that he and the other men in the police department were sworn in as police officers by the city clerk on New Years Eve, December 31, 1963. The record does not support appellant's contention that the appellee was removed only as chief of police.

The trial court specifically found that 'no notice of charges have ever been served upon the plaintiff by the defendant city; that no charges have ever been brought before the plaintiff by the defendant city; that no hearing has ever been had in the presence of the plaintiff by the defendant city; that there is no evidence that there ever was a meeting by the Board of Public Safety wherein the dismissal of the plaintiff was discussed or determined.' This finding was not only supported by sufficient evidence, but it is undisputed that there is no record of any charges made, notice...