City of Washington v. Boger, 19483

• Decision Date: 10 August 1961
• Docket Number: No. 19483,No. 1,19483,1
• Citation: 132 Ind.App. 192,176 N.E.2d 484
• Parties: CITY OF WASHINGTON, Appellant, v. Lawrence BOGER, Appellee
• Court: Indiana Appellate Court

Page 484

176 N.E.2d 484

132 Ind.App. 192

CITY OF WASHINGTON, Appellant, v. Lawrence BOGER, Appellee.

No. 19483.

Appellate Court of Indiana, Division No. 1.

Aug. 10, 1961.

Seal & Seal, R. O. Chambers, Washington, for appellant.

Jay O. Chapman, Washington, Wilbur F. Dassel, Evansville, for appellee.

MYERS, Judge.

This is an appeal from a judgment of the Daviess Circuit Court, setting aside an order of the Board of Public Works and Safety of the City of Washington, Indiana, hereinafter called the Board, which previously had dismissed appellee as a fireman of that city. The court ordered appellee to be reinstated and that he recover his back pay from the city.

Appellee had been employed as a fireman with the Washington Fire Department for a period of almost seventeen years. On June 22, 1959, there appeared in the Board's minute book, as of the same date, the following entry 'Fire Chief, Joe Daily, reported to the Board of Works that a member of the Fire Department should be brought before the Board for a hearing on complaints that were filed against him by other members of the Fire Department.'

On June 23, 1959, Chief Daily personally served a copy of a 'notice' on appellee, which reads as follows:

'Othmar C. Frye

'Mayor

'City of Washington, Indiana

'June 23, 1959

'Fireman Lawrence Boger

'Fire Department

'City Hall

'Washington, Indiana

'Notice

'Fireman Lawrence Boger, you are hereby notified that a complaint has been filed with the Board of Public Works and Safety of the City of Washington, Indiana, against you alleging a violation of the rules of the Fire Department and charging you with conduct unbecoming an Officer.

'A hearing on this charge will be held by the Board of Public Works and Safety on June 26, 1959, at 3 o'clock P.M. in the Council Chambers of the Common Council of the City of Washington, City Hall, Washington, Indiana.

'Board of Public Works and Safety

'By /s/ Othmar C. Frye

'Othmar C. Frye, Pres.

'This is to certify that I have this day personally read the above notice on the said Fireman, Lawrence Boger and delivered to him a true copy of said notice.

'/s/ Joseph F. Daily

'Jos. Daily, Chief, Fire Dept.

'Date June 23, 1959'

On June 26, 1959, there was a hearing before the Board, all members being present. Chief Daily, four other members of the Fire Department, and Mrs. Belle Smoot appeared as witnesses. At that time the charges asserted against appellee were read by the Mayor. They were in the form of a letter, which reads as follows:

'Washington Fire Department

'Washington, Indiana

'June 22, 1959

'To the Board of Public Works and Safety,

'Washington, Indiana

'Gentlemen:

'I wish to hereby file a complaint with the Board against a member of the Fire Department; namely, Lawrence Boger, for conduct unbecoming an officer, and ask the Board to set a date for a hearing.

'/s/ Joseph F. Daily

'Jos. Daily, Chief

'Washington Fire Department'

Appellee was not present at the hearing, having notified the Chief the day before that he would be unable to attend because of sickness. A doctor's written statement, dated June 24, 1959, confirmed this, saying that appellee was confined to his home for five or six days. At the conclusion of the hearing, the Mayor, who presided, announced that a decision would be reached within seven days.

On June 29, 1959, the Board held a special meeting on the matter of the charges against appellee. The pertinent part of the minutes of this meeting reads as follows:

'A review of the evidence heard on June 26 was made by the Board and a discussion had and it was found that the charges were true and that the said Lawrence Boger was guilty of conduct unbecoming an officer in that he wrongfully appropriated money from a cash box kept in the fire station and converted same to his personal use. The Board further finds the firemen present testified they indicated they did not want to work with Mr. Boger. The Board found that no additional evidence had been offered and that no action by the said Boger had been made to the Board to refute said charges or to continue said hearing or to offer other evidence and, therefore, it was moved, seconded and unanimously agreed that it is the order of the Board that said Fireman Lawrence Boger is discharged as a fireman of the City of Washington as of June 29, 1959, and that he shall receive his accumulated one week's vacation pay. The secretary of the Board is directed to serve a copy of this order on the said Lawrence Boger.'

From this action of the Board, appellee took an 'appeal' to the Circuit Court of Daviess County, Pursuant to § 48-6105, Burns' Ind.Stat., 1950 Replacement, by filing his complaint in four paragraphs, wherein he alleged the action of the Board was arbitrary, capricious and illegal. At the hearing before the court it was stipulated that all the evidence in the cause would consist of the transcript of the record of the proceedings before the Board and a portion of the minutes of the Board dated May 13, 1957, being general rules and regulations pertaining to disciplinary action against firemen and policemen. The court made certain findings of facts and entered judgment in favor of appellee, the pertinent parts of which are as follows:

'5. The hearing was held on June 26, 1959 according to the notice and that all members of the Board were present and that Joseph Daily, Fire Chief, Howard Riffey, fireman, Arthur Price, Assistant Chief, Mrs. Belle Smoot, Leslie Meade, Lieutenant of the Fire Department, and Augustus Grannan, fireman, appeared as witnesses at the hearing.

'6. The Court further finds that no testimony was given at the hearing concerning Fireman Boger's lack of qualifications or fitness to perform his job or of his unwillingness to do so, nor has any evidence of any substantial merit been presented showing the violation by Boger of any of the rules and regulations as above set forth.' [This refers to certain rules pertaining to disciplinary action previously adopted by the Board and in effect at the time, the pertinent parts of which are set forth hereafter in this opinion.]

'7. The Court further finds that Boger is a tenure employee under the laws of the State of Indiana.

'8. It is further found by the Court that three (3) days after the hearing, and on June 29, 1959, Boger was dismissed from his position on the Fire Department of the City.

'Upon this finding of fact, this Court finds tht the law is with the plaintiff in his appeal to this Court from his dismissal, and that the Board of Public Works and Safety of the City of Washington, acted arbitrarily, capriciously and illegally in its dismissal of Lawrence Boger as an officer of the Fire Department of the City of Washington, Indiana. It is therefore considered ordered and adjudged by the Court that Lawrence Boger should be reinstated as a member of the Fire Department of the City of Washington, Indiana, and that he recover of and from the City of Washington, Indiana, all back pay due and owing him as a result of his dismissal, together with the court costs of this appeal.'

Appellant filed a petition for rehearing in which it stated that the court erred in that the decision was not sustained by sufficient evidence and was contrary to law; in overruling appellant's motion to dismiss; in assuming to control the discretion of the Board; in substituting its judgment for that of the Board 'when there was undisputed substantial evidence in the record showing conduct of plaintiff which was unbecoming an officer'; in ordering full back pay without considering appellee's earnings during his suspension; and in that appellee did not demand a hearing before the Board.

The court overruled this petition and this appeal followed. The assignment of error is the overruling of appellant's petition for rehearing.

Appellant has joined its specifications of error, with the exception of the question as to back pay, which it does not argue at all, and thus is waived, into three main arguments. They are (1) that the decision of the court is not sustained by sufficient evidence; (2) that the decision is contrary to law; and (3) that the court erred in assuming to control the discretion of the Board.

As to argument number one, on the sufficiency of the evidence, we find it of no avail to appellant. The court reviewed only the record of the evidence presented to the Board. There was no trial de novo. The circuit court's decision held unlawful the action taken by the Board. The record on judicial review was based completely upon the Board's own record. This, in effect, was a decision against appellant, which had the burden of proof in the first place. Although seemingly an affirmative judgment in favor of appellee, as plaintiff, it actually amounted to a finding against appellant, as complaining party, in the proceedings before the Board. In so far as appellant is concerned, therefore, it results in a negative decision. Thus, appellant cannot successfully claim as error the insufficiency of the evidence which it produced. If it was entitled to relief under the evidence, and such relief was denied by the court, the decision is contrary to law. Souerdike v. State, 1952, 231 Ind. 204, 108 N.E.2d 136; Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, ch. 30, § 1812, comment 6, page 88 (1959 Supp.), and cases cited.

In so far as the argument that the court assumed to control the discretion of the Board is concerned, this is a matter of law. This is also true concerning the other specifications of error set forth in the petition for rehearing. Consequently, this court will look at this matter solely on the basis of whether or not the decision of the court was contrary to law.

From the record of the hearing before the Board, we find evidence that there was a 'cash box' which was kept on the second floor of this particular fire station in the City of Washington. It was an open cigar box containing loose change, apparently contributed by the firemen from...