State ex rel. Burton v. City of Princeton, 29330

• Decision Date: 25 May 1956
• Docket Number: No. 29330,29330
• Parties: The STATE of Indiana ex rel. Roy BURTON, Appellant, v. The CITY OF PRINCETON, M. Vernor Woodruff, George W. Ploch, Wylie M. Woods, Harold Lewis William McConnell, James Floyd Sinkhorn, as Members of the Common Council of the City of Princeton, M. Vernor Woodruff, Wylie M. Woods, George W. Ploch, as Members of the Board of Public Works and Safety of the City of Princeton, Appellees.
• Court: Indiana Supreme Court

Page 692

134 N.E.2d 692

235 Ind. 467

The STATE of Indiana ex rel. Roy BURTON, Appellant, v. The CITY OF PRINCETON, M. Vernor Woodruff, George W. Ploch, Wylie M. Woods, Harold Lewis William McConnell, James Floyd

Sinkhorn, as Members of the Common Council of the City of

Princeton, M. Vernor Woodruff, Wylie M. Woods, George W.

Ploch, as Members of the Board of Public Works and Safety of

the City of Princeton, Appellees.

No. 29330.

Supreme Court of Indiana.

May 25, 1956.

Mark P. Lockwood, Warren W. Barnett, Princeton, Wilbur F. Dassel, Evansville, for appellant.

Harvey W. Garrett, Princeton, for appellees.

EMMERT, Judge.

The decisive issue in this appeal is whether the relator, a former member of the police department of the City of Princeton, was barred by laches from recovering in his action to mandate his restoration as a member of such police department. The trial court, upon its special finding of facts, concluded as a matter of law that relator was guilty of laches, and that the law was with the appellees, and from the adverse judgment thereon the State, on relation of Burton, appeals.

Princeton is a city of the fifth class, and on or about January 1, 1930, relator was employed as one of its policemen. On January 2, 1948, relator executed a request, prepared by his attorney, for an indefinite leave of absence, which was accepted by the Board of Public Works later on the same day. Relator charged in his complaint that this request was demanded by the Board. As to this charge the court found as follows:

'No. 6. 'That at and prior to January 2nd, 1948, the Relator was told, in substance, by at least one member of the then Board of Public Works and Safety that his resignation was desired and that in the alternative, some method would be found or used to accomplish his separation from the Police Force; that a similar plan was used in connection with other members of the then Police Force in what the Court finds was a general plan intended to accomplish a change of personnel in the Police Force of said City. That no charges were presented or filed against the Relator as a basis for his severance from the Department and as provided in the law governing the Merit System as it applied to the Police Force; and no hearing was held as to any charges against the Relator as a cause of discharge or demand for resignation.'

Additional findings material to the issue of laches are as follows:

'No. 9 'That the Relator made no demand upon the Board of Public Works and Safety of the City of Princeton for reinstatement as an active member of the Police Force of the City of Princeton prior to the filing of his action herein in mandate, which was filed and this action commenced on July 7th, 1952, and that no legal or equitable justification existed for said delay of over 4 1/2 years.'

'No. 10 'That there have been other Police Officers appointed by the Board of Public Works and Safety of the City of Princeton since January 2nd, 1948, and that the Police Force of the said City has been kept to its full complement of needed Officers. That other persons have performed all the duties of said Police Department continuously since January 2nd, 1948, including those duties performed by the Relator prior to said date.'

'No. 11 'That the present members of the Police Department of the City of Princeton are likewise under the Merit System of the State of Indiana and that no cause for dismissal of any member of said Police Department is found to exist.'

The public's interest is of first consideration in the tenure act for police and firemen, § 48-6105, Burns' 1950 Replacement. 'It has long been recognized in this State that better police service is insured by police departments being free from political control and by the members of such departments having a tenure of office dependent only on their ability to perform and conscientious performance of their duties.' Coleman v. City of Gary, 1942, 220 Ind. 446, 455, 44 N.E.2d 101, 106.

Although an action in mandamus is an extraordinary legal remedy, equitable principles may prevent such relief. ¹ 'The writ of mandamus is an extraordinary writ, and, while not discretionary, it will only be issued by a court in the exercise of a sound legal discretion. 'It is a remedial process, and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which...