City of Peru v. State ex rel. McGuire
| Decision Date | 10 January 1936 |
| Docket Number | 26405 |
| Citation | 199 N.E. 151,210 Ind. 668 |
| Parties | CITY OF PERU et al. v. STATE ex rel. McGUIRE |
| Court | Indiana Supreme Court |
Appeal from Miami Circuit Court; Oren W. Dickey, Special judge.
[Rehearing denied January 12, 1937.]
1. MANDAMUS---Public Officers---Removal of Public Officers or Employees---Municipal Firemen---Legality of Discharge.---In city fireman's mandamus proceeding for reinstatement on the fire force after discharge, whether relator was accorded a hearing as prescribed by statute was a fact question for the trial court which could not be reviewed on appeal since the Supreme Court does not weigh evidence. p. 670.
2. MANDAMUS---Public Officers---Removal of Public Officers or Employees---Municipal Firemen---Reinstatement.---Where a member of a municipal fire force has been discharged for political reasons or without a hearing as prescribed by statute, mandamus will lie for his reinstatement. p. 670.
3. MUNICIPAL CORPORATIONS---Officers and Employees---Firemen---"Employees"; Not "Officers."---Members of municipal fire force are employees, not officers. p. 672.
4. MANDAMUS---Public Officers---Removal of Public Officers or Employees---Municipal Firemen---Salary.---Since a city fireman is an employee rather than an officer of the municipality, mandamus will not lie to compel payment of salary during the time of his wrongful discharge. p. 672.
5. MUNICIPAL CORPORATIONS---Officers and Employees---Firemen---Salary---Remedy When Wrongfully Discharged.---Where a city fireman has been wrongfully discharged, his remedy, as respects salary while off the force, is by suit for damages for breach of his contract of employment, the measure of damages being the amount the salary exceeds his earnings and income in other occupations during such period. p. 672.
6. MUNICIPAL CORPORATIONS---Officers and Employees---Compensation---Of De Jure Officer---After Payment to De Facto Officer.---Where a de facto officer of a municipal corporation has received the salary attached to the office in regular course for the time he occupied the same and performed the duties thereof, the municipality is not thereafter liable to the de jure officer for such salary though he may obtain possession of the office and show that he has been kept out of it by wrongful acts of other officers of the municipality. p. 672.
Mandamus proceedings by the State on the relation of James McGuire against the City of Peru and others to compel relator's reinstatement as a member of the fire force of said city and payment of salary during relator's alleged wrongful discharge. From a judgment for relator, respondents appealed. Affirmed as to reinstatement reversed as to salary.
Appeal from Miami Circuit Court; Oren W. Dickey, Special judge.
C. Y Andrews and A. H. Cole, both of Peru, for appellants.
Rhodes & Rhodes, of Peru, for appellee.
The relator, appellee herein, filed this action to mandate the respondents, appellants, demanding that he be restored to his position as a fireman in the fire department of the city of Peru, a city of the fourth class, from which position he alleged that he had been unlawfully removed for political reasons, and without a hearing as provided by section 48-6105, Burns' Ann.St. 1933, Baldwin 1934, § 11478; that relator possessed all the statutory qualifications and duly performed the services required of him. He alleged that he was discharged January 16, 1930, and since that date had not received his salary of $ 120 per month. He demanded that respondents be mandated to pay said salary to date of trial. He further asked that respondents be enjoined 'from appointing or electing any other person to occupy said office in his place and in his stead and from paying to any other person the salary or emoluments thereof.'
The issues were formed by affirmative paragraphs of answer to which a reply in denial was filed.
Among the answers filed was one admitting relator's discharge from his position on the fire force of said city, and alleging that upon his discharge another was duly appointed and qualified in his place, and thereafter continued to act in said capacity and received the salary thereof; that the relator's discharge was not for political reasons, but that he was discharged after a hearing was accorded him as provided by law.
The cause was submitted to the court for trial, which resulted in a finding and judgment for relator as follows: (1) The respondents were mandated to set aside their order discharging relator, and that he be recognized and re-established in office as a member of the fire force of said city; and (2) that respondents be, and they were, mandated to pay to relator his salary of $ 120 per month from January 16, 1930, to date of judgment, in the total sum of $ 4,912.
The necessary proceedings were had to perfect an appeal to this court.
Under the statute, the common council of a city of the fourth class constitutes the board of public safety. The section of the statute above referred to provides that the members of the fire force, appointed by the board of public safety, shall hold their office until removed. Provisions are prescribed as to the hearing and manner of removal. The details of the statute need not be set out herein.
Upon the trial in the lower court, evidence was heard as to the relator's appointment and as to the method and manner of his removal. This question was one of fact submitted to the trial court, the result of which was a finding and judgment in favor of relator. Upon such question of fact, this court is without authority to weigh the evidence, but is bound by the judgment of the lower court. The evidence is such that the trial court was justified in deciding that the relator was not accorded a hearing as prescribed by the above statute, and...
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