Mills v. City of Winchester

• Decision Date: 29 October 1959
• Docket Number: No. 1,Nos. 18937,18938,s. 18937,1
• Citation: 162 N.E.2d 97,130 Ind.App. 397
• Parties: Glen MILLS, Appellant, v. CITY OF WINCHESTER, Appellee. Forrest CASTOR, Appellant, v. CITY OF WINCHESTER, Appellee
• Court: Indiana Appellate Court

Page 97

162 N.E.2d 97

130 Ind.App. 397

Glen MILLS, Appellant, v. CITY OF WINCHESTER, Appellee.

Forrest CASTOR, Appellant, v. CITY OF WINCHESTER, Appellee.

Nos. 18937, 18938.

Appellate Court of Indiana, Division No. 1.

Oct. 29, 1959.

Wilbur F. Dassel, Evansville, Merrill W. Nichols, of Nichols & Nichols, Winchester, for appellants.

John T. Cook, City Atty., Winchester, Russell E. Wise, Union City, for appellee.

COOPER, Judge.

These are appeals by Glen Mills and Forrest Castor, appellants herein, from a judgment rendered against them in Randolph Circuit Court on their separate complaints for an 'appeal' and/or a judicial review of the action of the Board of Public Works and Safety of the City of Winchester, a city of the fifth class, in dismissing each as firemen of said city, pursuant to § 48-6105, Burns', 1950 Replacement, and § 48-6120c, Burns', 1950 Replacement. See also, Vol. 26, Indiana Law Journal, p. 397, Vol. 28, pp. 1 to 31 and 293 to 333, Indiana Law Journal.

In discussing such appeals, our Supreme Court has said in the case of Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, at 105, 26 N.E.2d 399, 404:

'Strictly speaking, there is no such thing as an appeal from an administrative agency. It is correct to say that the orders of an administrative body are subject to judicial review; and that that must be so to meet the requirements of due process. Such review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers; that substantial evidence supports the factual conclusions; and that its determination comports with the law applicable to the facts found.' See also Hansen v. Town of Highland, 1958, 237 Ind. 516, 147 N.E.2d 221; Wilmont v. City of South Bend, 1943, 221 Ind. 538, 48 N.E.2d 649; City of Elkhart v. Minser, 1937, 211 Ind. 20, 25, 5 N.E.2d 501, 503.

The proper issues were made and three-after the separate causes were consolidated in the trial court for trial purposes. Trial by the court. The court, after hearing the evidence, entered the following finding and judgment:

'The Court having heretofore taken this matter under advisement, now finds for the defendant that the decision of the Board of Public Works and Safety should be in all things confirmed.

'It is, therefore, considered, ordered and adjudged by the Court that the plaintiff take nothing by his complaint and that the costs of this proceeding, in the amount of $_____ be taxed against the plaintiff.'

Thereafter, the appellants, each and severally, filed motions for a new trial and after the motions were overruled, brought this appeal and assigned as error the overruling of their motions for a new trial.

Motion for a new trial asserts, in substance, that the decision and finding of the court were not sustained by sufficient evidence and are contrary to law.

The foregoing cases were submitted to the trial court under the provisions of §§ 48-6105 and 48-6120, Burns', 1950 Replacement. This statute authorizes a so-called appeal by the appellants from the action of the Board of Public Works and Safety of the City of Winchester in dismissing said parties as members of the fire department. See Durham v. City of Indianapolis, 1952, 123 Ind.App. 74, 108 N.E.2d 205.

The trial court on an 'appeal', as in this cause, was exercising a purely judicial power to determine the legality of the Order made, and the further purpose of determining whether the Board acted within its legal jurisdiction. City of Elkhart v. Minser, supra.

Our Supreme Court has stated in the case of State ex rel. Standard Oil Co. v. Review Bd., 1951, 230 Ind. 1, 101 N.E.2d 60, 66:

'What is the province of a court when the review of an administrative order is sought? 'It must be conceded that it is the undoubted function of the court to determine the matter of jurisdiction, that is, the power of the administrative agency to decide the question which it has undertaken to decide. Jurisdiction is grounded on constitutional or statutory authority, the existence of which is always a judicial question.' Warren v. Indiana Telephone Co., supra.'

Sec. 48-6105, Burns', supra, provides, in part:

'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. * * *'

Therefore, the Indiana law grants tenure status to members of the fire department by the first sentence of said section, (See City of Fort Wayne v. Bishop, 1950, 228 Ind. 304, 92 N.E.2d 544; State ex rel. Felthoff v. Richards, 1932, 203 Ind. 637, 180 N.E. 596) and they can only be removed for causes set forth in the statute.

The removal of a fireman from the department is provided for by the second sentence of the foregoing 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.' (Our emphasis.

Sec. 48-6120c, Burns', supra, relating to the removal of policemen and firemen of fifth-class cities, also provides:

'On and after the effective date of this act (§§ 48-6120b, 48-6120c) firemen and policemen in cities of the fifth class shall be entitled to notice, hearing and right of review before either suspension or dismissal from the fire department or police department. * * *'

Our Supreme Court, in interpreting § 48-6105, Burns', supra, in the case of State v. Reichert, 1948, 226 Inc. 358, 363, 80 N.E.2d 289, 291, relative to the removal of a person coming under the Act, stated unequivocally:

'* * * and can be removed from the force only after charges are filed and served upon him and a hearing held by the board of public safety.'

Proceedings to remove a fireman from the fire department is both penal and remedial, and, of course, is in the nature of a civil action. The statutes applicable thereto must be strictly construed. City of Fort Wayne v. Bishop, supra.

The procedural steps outlined in the foregoing paragraph are mandatory and establish conditions precedent which must be followed before a Board of Public Works and Safety has jurisdiction to remove a fireman for cause. This is necessary in order to afford the person sought to be dismissed with 'due process' as guaranteed by both our State and Federal Constitutions.

The jurisdiction of the Board of Public Works and Safety of the City of Winchester, Indiana in such matters is not one of general jurisdiction; its jurisdiction and powers conferred by the foregoing statute are limited. Notice is one of the prerequisites compelled by the statute. 'Where notice is one of the steps required, notice must be given at the time, in the manner and to the persons specified by the statute.' Perkins v. Indiana Mfg. Co., 1915, 58 Ind.App. 220, 222, 108 N.E. 165.

The Supreme Court of Indiana in the case of State Board of Tax Com'rs v. McDaniel, 1928, 199 Ind. 708, at 716, 160 N.E. 347, 350, stated:

'Not only are the orders which it may make particularly described and limited, but the method of procedure which the board must pursue is plainly and unequivocally set forth in the law. Twice within recent years have the courts decided that the powers conferred upon the board are limited by the statute (State Board of Tax Com'rs v. Belt R. R. & Stock Yards Co., 1921, 191 Ind. 282, 285, 130 N.E. 641; Gray v. Foster, 1910, 46 Ind.App. 149, 92 N.E. 7); but it has also been decided by the courts that, where the statute provides the procedure through which the board must proceed as a foundation for its orders, such prescribed procedure must be followed implicitly, and such procedure is a measure of the power given.'

In the case at bar, the record shows conclusively that the Board of Public Works and Safety did not follow the procedure lawfully prescribed, but disregarded the statute pertaining to the notice of the hearing and of the charges attempted to be preferred.

The undisputed facts as shown by the record in the cause before us shows that on the first day of January, 1956, the appellants received the following letter (omitting the formal parts) from the Mayor of the city of Winchester. The record also reveals that this was the first day in office for the Mayor.

'It wish to inform you that after January 1, 1956, I will no longer need your services. By popular demand of Winchester citizenry, I have been asked to cut expenditures, and am doing this in best interest of all concerned.

'I wish to extend our deepest thanks and appreciation for your past services to Winchester, and wish you much success in the future. * * *

'P. S. If you are not in accord with my decision, you may appeal before the Board of Works no later than January 14, 1956.' (Our emphasis.)

We cannot say as a matter of law that the foregoing notice was the written notice of the Board of Public Works and Safety of a time and a place of a hearing concerning the removal of the appellants from the fire department upon charges already filed. The letter was solely a letter of dismissal by the Mayor of the city, as shown by the emphasized part of the post-script. Another unusual thing which appears from the record the fact that, although the letter of dismissal by the Mayor was dated January...