Roth v. State ex rel. Kurtz
Decision Date | 01 April 1902 |
Docket Number | 19,322 |
Parties | Roth et al. v. The State, ex rel. Kurtz et al |
Court | Indiana Supreme Court |
From Marion Superior Court; Vinson Carter, Judge.
Mandamus by the State on the relation of Jacob D. Kurtz and others against Charles C. Roth and others, members of the board of public safety of the city of Indianapolis, to restore relators to their positions as policemen of said city, from which they had been dismissed. From a judgment in favor of relators, defendants appeal.
Affirmed.
J. W Kern and J. E. Bell, for appellants.
C. W Smith, J. S. Duncan, H. H. Hornbrook and A. Smith, for appellees.
Appellants, Charles C. Roth, Nelson J. Hyde, and Wilson C. McMillen, on and prior to December 15, 1899, and subsequent thereto, were the members of the board of public safety of the city of Indianapolis. Relators on said day, and previous thereto, were policemen of that city, having been appointed by the board of public safety as members of the regular police force, and were discharging the duties of patrolmen. On said day appellants, as members of said board, by an order entered on the records of their office, assumed to dismiss relators from the police force without granting them any trial or hearing in respect to the cause of their removal. After the order of removal had been entered, they were notified that they had been dismissed, and were directed to turn over all of the property in their possession belonging to the city to the captain of police. Thereafter they instituted this action to obtain a writ of mandate against appellants, as such board of public safety, to restore them to the positions which they held at the time of the alleged removal. An alternative writ was duly issued, which required appellants to restore the relators to their former places, or, in the event of their refusal to comply with the court's mandate, they appear at the time fixed and show cause in justification of such refusal. At the time designated in the writ, appellants appeared and made return thereto, in which they recited or alleged that: "The board had investigated the standing and conduct of each of the relators, with the view of ascertaining their efficiency and fitness as such officers, and, as a result of such investigation, satisfied themselves and found the facts to be, that, all of said relators were inefficient officers, and that, to maintain the efficiency of the police force of said city, it was necessary that they, and each of them, be removed therefrom." The return then proceeds to charge that these relators treated their superior officers, and the orders given by the latter, with contempt; that they were guilty of general insubordination; that some of them were drunkards, and that others associated with lewd women and were patrons of houses of ill fame. After making these charges the return continues as follows:
On demurrer the court held the return to the alternative writ insufficient, and, appellants refusing either to amend or make a further return, judgment was rendered by which a peremptory writ of mandate in favor of the relators was awarded. A reversal of this judgment is sought on the ground that the lower court erred in sustaining the demurrer to the return of the alternative writ. The question presented for our determination is whether the power of removing these relators, which is vested by law in the board of public safety of said city, has been legally exercised, under the procedure adopted by appellants in the removal of these policemen. Or, in other words, may this board, under the provisions of the statute by which the city of Indianapolis is governed, legally remove patrolmen belonging to the police force thereof by merely entering of record the reasons or grounds of such removal, without any charges having been preferred against the accused by the board, or any member thereof, or by any other person of said city, and without giving any notice to the accused party or parties, and without granting unto them an opportunity to be heard in their own defense? To determine this question, it is necessary to examine and fully consider the provisions of the charter law under which the city of Indianapolis operates, and controls its municipal affairs.
Counsel for appellees contend that patrolmen of the police force of said city are appointed to serve upon the police force during good behavior, and that they can not be legally removed, except for cause or causes, on charges preferred, after being given an opportunity to be heard in their defense in respect to the accusation preferred against them.
On the other hand, counsel for appellants contend: First, that no such interpretation can reasonably be given to the provisions of the city charter; second, that, if such a construction prevails in respect to the statute in question, it will result in bringing it into conflict with § 2 of article 15 of the State Constitution, which is as follows:
We will first consider the construction of the statute in dispute, and next, in the event it becomes necessary, the application thereto of the above provision of our Constitution.
The statute commonly known as the "Charter law of the City of Indianapolis," entitled "An act concerning the incorporation and government of cities having more than 100,000 population, etc.," has been in force since 1891. Acts 1891, p. 137, § 3772 et seq. Burns 1901. Section 48 of this statute, being § 3819 Burns 1901, provides:
Section 95 of the charter, § 3866 Burns 1901, provides: An examination of the provisions of the statute in question, discloses that the word "hereinbefore", as used in the preceding section, is a clerical error; and in construing the statute the word should be read "hereinafter", as was evidently intended.
Section 96, § 3867 Burns 1901, provides: ...
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