Durham v. City of Indianapolis, 18290

• Decision Date: 23 October 1952
• Docket Number: No. 18290,18290
• Citation: 108 N.E.2d 205,123 Ind.App. 74
• Parties: DURHAM v. CITY OF INDIANAPOLIS.
• Court: Indiana Appellate Court

Page 205

108 N.E.2d 205

123 Ind.App. 74

DURHAM v. CITY OF INDIANAPOLIS.

No. 18290.

Appellate Court of Indiana, in Banc.

Oct. 23, 1952.

Howard R. Hooper, Indianapolis, for appellant.

Jesse W. Peden, Frank X. Haupt, Palmer K. Ward and Jacob S. Miller, all of Indianapolis, for appellee.

CRUMPACKER, Judge.

While a member of the police force of the city of Indianapolis, charges of misconduct were brought against the appellant and after a hearing before the Board of Public Safety of said city he was dismissed from service upon the written order of said board.

Burns' Stat. § 48-6105, provides in part as follows:

'Any member of such fire or police force who is dismissed from such force, as aforesaid, or is suspended therefrom for any period in excess of thirty (30) days, shall have the right to appeal to the circuit or superior court of the county in which such city is located from such decision of dismissal or suspension by said board, but shall not have such right of appeal from any other 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 and plaintiff shall cause summons to issue as in other cases against such city. The board of public safety or the board of metropolitan police commissioners, or the members thereof, shall not be made parties defendant to any such complaint, but shall be bound by such service upon the city and the judgment rendered by the court. 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 unless written request for jury be made not less than five (5) days before the date set for said hearing, 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, and inspection thereof by the person affected, or by his or her agent, shall be permitted by the board before such appeal is filed, where so requested. 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 appellant appealed from the dismissal order of the board to the Marion Superior Court and thereafter the appellee, City of Indianapolis, filed a transcript in said court containing a copy of all 'papers, entries and other parts of the record' pertaining to the case. Although the statute above set out does not require or apparently contemplate it, said copy of the board's record included a typewritten transcript of all the evidence adduced at the hearing before the board and upon which it rested its dismissal order. In disposing of the appeal the court denied the appellant a trial de novo 'upon the issues raised by the charges upon which the decision of the board was made' and, quoting from its judgment, confined itself to a 'review of the record for the purpose of ascertaining if petitioner Durham was afforded a fair trial and if there were sufficient facts whereby the Board of Safety Commissioners would be justified in finding as they did find' and, through this approach to the issues before it, the court affirmed the dismissal order of said board.

The appellant contends that this judgment is contrary to law because the statute, § 48-6105, supra upon which this whole proceeding rests, provides for a jury trial de novo of the questions which were tried by the board, at which trial 'each party may produce such evidence as it may desire relevant to the issues' and thereon the court or jury should determine the justification of the board's order.

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:

'Their contentions are based, it would seem, entirely upon the view that the statute in question provides for a trial de novo, a trial anew, of the questions which were tried by the Board of Public Works and Safety; that the cause should have been submitted to a jury; and that the jury should have decided the questions that were decided by the Board of Public Works and Safety...