Shira v. State ex rel. Ham

Decision Date04 June 1918
Docket Number23,164
Citation119 N.E. 833,187 Ind. 441
PartiesShira et al. v. State of Indiana, ex rel. Ham et al
CourtIndiana Supreme Court

From Wabash Circuit Court; A. H. Plummer, Special Judge.

Action by the State of Indiana, on relation of Avery G. Ham and others, against Milton E. Shira and others, as members of the board of police commissioners of the city of Marion. From a judgment for the relators, the defendants appeal.


Verling W. Davis and Warren G. Sayre, for appellants.

Harry E. Roberts, Frank O. Switzer, Walter S. Bent and John A Kersey, for appellees.


Spencer, J.

This action was instituted by the relators, in the name of the state, for the purpose of compelling the members of the board of police commissioners of the city of Marion to vacate a certain order entered by such board dismissing the relators from the police force of said city and to procure their reinstatement as members of that force.

The complaint charges in substance that each of the relators was dismissed from the service of the city without previous notice and without reason, except to make room for the appointment of other persons to the police force; that such other persons were in fact appointed in the places of the relators and are now acting in their stead and receiving the salaries to which they are rightfully entitled; that no charges or accusations of any kind were made against the relators, or either of them, and that none of said relators was in any respect incompetent or unwilling to perform the duties of his office; that shortly after their said dismissal, and for the purpose of giving color thereto, the board of police commissioners caused to be delivered to the relators a certain written instrument in which it was stated that the board had determined that the police force should be reduced, through the dismissal of the relators, in the interests of economy and efficiency, and fixed a day for a hearing on such notice; that after said hearing the board of commissioners caused to be delivered to the relators another written instrument, purporting to be a copy of a certain order entered on its records by said board, in which it was found that the causes set out in the notice above referred to should be sustained and the police force of the city of Marion reduced through the dismissal of the relators therefrom; that said pretended assignment of causes and said order of dismissal were each false and known by the board to be false; that the police force was not in fact reduced in number, and that the board had no intention of reducing the same at the time the relators were dismissed from the service. The prayer asked for the vacation of the pretended order of dismissal and for the reinstatement of the relators as members of the police force.

On appeal from a judgment granting the relief prayed for appellants first contend that the relators do not have a joint interest in the subject-matter of the suit and that the demurrer to the complaint should therefore have been sustained. There can be no doubt, however, that said relators have a common interest in setting aside the general order of dismissal as it appears on the records of the police commission, even though their several interests which might follow and depend on a favorable determination of the principal issue would be separate and distinct. That fact is sufficient to authorize them to maintain a joint action, and renders the complaint good as against the first ground of the demurrer. State, ex rel. v. Mount (1898), 151 Ind. 679, 681, 51 N.E. 417, 52 N.E. 407; State, ex rel. v. Mayor (1891), 43 La. Ann. 92, 110, 8 So. 893; State, ex rel. v. Kendall (1906), 44 Wash. 542, 544, 87 P. 821; Hughes v. Outlaw (1916), 197 Ala. 452, 73 So. 16.

Appellants' next assertion is that the complaint, considered on its merits, does not state a cause of action, but we are unable to agree with this contention. The police department of the city of Marion, as the complaint shows, is governed by the provisions of § 9034a Burns 1914, Acts 1913 p. 117, and its members, when appointed, "shall serve during good behavior." Their term of office is thus a fixed tenure within the meaning of the law (Roth v State, ex rel. [1901], 158 Ind. 242, 264, 63 N.E. 460), and as a general proposition they are not subject to be dismissed from the service except for cause, and then after a hearing on proper notice. This rule is subject to the...

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