Mobley v. City of Evansville

• Decision Date: 27 May 1960
• Docket Number: No. 1,No. 19246,19246,1
• Citation: 167 N.E.2d 473,130 Ind.App. 575
• Parties: Jack MOBLEY, Appellant, v. CITY OF EVANSVILLE, Indiana, Appellee
• Court: Indiana Appellate Court

Page 473

167 N.E.2d 473

130 Ind.App. 575

Jack MOBLEY, Appellant, v. CITY OF EVANSVILLE, Indiana, Appellee.

No. 19246.

Appellate Court of Indiana, Division No. 1.

May 27, 1960.

James D. Lopp, John D. Clouse, Wilbur F. Dassel, Evansville, for appellant.

Ellis B. Anderson, James W. Angermeier, Phillip L. Kiely, Evansville, for appellee.

MYERS, Judge.

This action was instituted by the appellant, Jack Mobley, against the appellee, City of Evansville, Indiana, in the nature of a mandatory injunction to be reinstated as a fireman in the Fire Department of the City of Evansville.

The issues were formed by appellant's complaint, which alleged that he was a fireman in good standing in the Fire Department of the City of Evansville until August 23, 1957, on which date he was discharged by the Board of Public Safety of the City of Evansville, hereinafter called the Board, for violating an order of the Board. He claimed that such dismissal was illegal, arbitrary, capricious and fraudulent, and asked the court to review the Board's decision and reverse it.

To this complaint appellee filed a motion to dismiss and a demurrer, both of which were overruled by the trial court. Subsequently trial was held by the court and evidence heard. The court made certain findings of facts and conclusions of law in favor of appellee. Judgment was entered accordingly, thus affirming the decision of the Board. Appellant filed his motion for a new trial, which was overruled, and this appeal followed.

The grounds for a new trial are that the decision is not sustained by sufficient evidence and is contrary to law; that the special findings of facts are not sustained by the evidence and are contrary to law; and that the court erred in its conclusions of law. Appellant's assignment of errors claims error in the overruling of his motion for a new trial.

Appellant has joined in one argument, without objection by appellee, all his grounds of error as set forth in the motion for a new trial. This being a negative judgment, appellant cannot challenge the insufficiency of the evidence to sustain the findings. City of Angola v. Hulbert, Ind.App.1959, 162 N.E.2d 324. The substance of his argument is that the court's decision is contrary to law.

Briefly summarized, the court's findings of facts are as follows: On or about July 26, 1957, the Board passed a resolution and made an order prohibiting all members of the Evansville Fire Department from tending bar in taverns or selling alcoholic beverages of any kind. On July 30, 1957, the Chief of the Evansville Fire Department had posted in all fire houses a notice of the order of the Board, which notice reads as follows:

'EVANSVILLE FIRE DEPARTMENT

JULY 30TH, 1957

'BULLETIN NO. 10.

'Subject:

'Effective August 1st, 1957 all members of the Evansville Fire Department are prohibited from tending bar in taverns or selling Alcoholic Beverages of any kind.

'Orders of Board of Public Safety

'/s/ CLARENCE J. BASSEMIER

'Clarence J. Bassemier

'Chief of Fire Department'

At this time appellant, Jack Mobley, was a fireman and member of the Evansville Fire Department and had been such for approximately seven years prior thereto. On August 3, 1957, the Chief had a conversation with appellant wherein appellant told the Chief that he was tending bar and did not intend to quit. He had been tending bar and selling intoxicating liquor at the time the order was made and posted until August 23, 1957. He knew of the existence of the order, but knowingly and willfully refused to comply with it.

On August 9, 1957, the Board adopted a resolution charging appellant with disobedience and ordered a hearing to be held on August 23, 1957. Notice was given to appellant in person and he thereupon made a demand upon the Board for a hearing. There was a hearing before the Board, where witnesses were sworn and testified in the presence of appellant. As a result, the Board found appellant guilty of disobedience of orders, and further found that he should be discharged.

The court found that the dismissal of appellant by the Board was because of disobedience of the order issued, and that such dismissal was not illegal, fraudulent, arbitrary or capricious. It thereupon entered its conclusions of law in favor of appellee and against appellant, affirming the action of the Board.

The only question presented before this court is whether the order dated July 26, 1957, was a reasonable one. In actions of this kind the trial court is without authority to modify or change the order of the Board unless the Board's action was tainted with fraud, capriciousness or illegality. City of Anderson v. Hadley, 1951, 122 Ind.App. 8, 102 N.E.2d 385; City of Elkhart v. Minser, 1937, 211 Ind. 20, 5 N.E.2d 501. If the Board's order was a reasonable one, we must uphold the judgment of the trial court.

The Indiana General Assembly has empowered Boards of Safety 'to make and promulgate rules and regulations for the appointment of members on such forces, and for their government * * *.' (Our emphasis.) Burns' 1950 Repl., § 48-6102.

It has been held that where administrative bodies have been created by the Legislature, the rules they make must be reasonable and reasonably adapted to carry out the purpose or object for which these administrative boards were created. Financial Aid Corporation v. Wallace, 1939, 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736; Indiana Employment Security Division etc. v. Ponder, 1951, 121 Ind.App. 51, 92 N.E.2d 224; Hill v, Review Board, etc., et al., 1953, 124 Ind.App. 83, 112 N.E.2d 218. If they are in conflict with the state's organic law, or antagonistic to the general law of the state, or 'opposed to the fundamental principles of justice, or inconsistent with the powers conferred upon such boards,' they are invalid. Blue v. Beach, 1900, 155 Ind. 121, 131, 56 N.E. 89, 93, 50 L.R.A. 64.

The Indiana Tenure Act provides that a municipal fireman may be removed for any cause other than politics, but a municipality cannot remove a fireman at pleasure, but only in accordance with statutory provision. Burns' 1950 Repl., § 48-6105; City of Ft. Wayne v. Hazelett, 1939, 107 Ind.App. 184, 23 N.E.2d 610. One of the statutory causes for removal is 'neglect or disobedience of orders.' Burns' 1950 Repl., § 48-6105, supra.

Our Supreme Court has held that if the cause for dismissal bears no reasonable relation to a policeman's or fireman's fitness or capacity to hold his position, the court must declare void a dismissal. State ex rel. Felthoff v. Richards, 1932, 203 Ind. 637, 180 N.E. 596; Roth v. State ex rel., 1902, 158 Ind. 242, 254, 63 N.E. 460, 464. In the Roth case the court said as follows:

'The statute declares in general terms that the removal must be for cause, and this, as the authorities affirm, necessarily and reasonably implies that the cause intended is to be some dereliction or general neglect of duty, or some delinquency affecting the general character of the officer, or his fitness for holding the office, or his incapacity to discharge the duties thereof.'

In City of Ft. Wayne v. Bishop, 1950, 228 Ind. 304, 314, 92 N.E.2d 544, 548, the Supreme Court said '* * * no cause is a legal cause unless it bears a legal relation to the policeman's fitness for holding the position, or his incapacity to discharge its duties.'

The same rule applies to firemen. City of Elkhart v. Minser, supra.

The evidence from the record reveals the following: Mobley, the appellant herein, at the time of this action was a married man with a 17-year-old son. His vocation had been that of a bartender, and he testified that he had tended bar for twenty years and belonged to the Bartenders' Union. He joined the Evansville Fire Department in 1950 and continued to serve as a bartender in his off hours in order to make additional income. This was known to his superiors. His wife purchased a neighborhood...