State ex rel. Felthoff v. Richards

• Decision Date: 07 April 1932
• Docket Number: 25,404
• Citation: 180 N.E. 596,203 Ind. 637
• Parties: State ex rel. Felthoff v. Richards et al
• Court: Indiana Supreme Court

180 N.E. 596

203 Ind. 637

State ex rel. Felthoff v. Richards et al

No. 25,404

Supreme Court of Indiana

April 7, 1932

Rehearing denied July 1, 1932.

1. PLEADING---Complaint---Insufficiency of Facts does not Affect Jurisdiction of Court.---Insufficiency of facts in a complaint does not affect the jurisdiction of the court over the subject matter. p. 640.

2. PLEADING---Grounds for Demurrer---Lack of Jurisdiction---Meaning of Phrase.---Lack of jurisdiction of subject matter contemplated by the statute (362, cl. 1, Burns Ann. Ind. St. 1926), as grounds for a demurrer, means that the court does not have jurisdiction of the general subject or of a general class of cases to which the particular case belongs. p. 640.

3. MUNICIPAL CORPORATIONS---Ruling of Board of Safety Discharging Policeman---Not Appealable.---No appeal is allowed to the courts from the action of a board of public safety discharging a police officer. p. 640.

4. PLEADING---Demurrer---All Facts well Pleaded Taken as True.---In considering whether complaint states cause of action as against demurrer, court must take all facts well pleaded as true. p. 640.

5. MUNICIPAL CORPORATIONS---Policemen and Firemen---Tenure of Office.---Policemen and firemen, by statute, hold an indefinite tenure of position during good behavior and satisfactory performance of their duties. (10864 Burns Ann Ind. St. 1926.) p. 641.

6. MUNICIPAL CORPORATIONS---Policemen and Firemen---Hearing For Removal.---The hearing required by law for the removal of a policeman or fireman must be a fair hearing, one conducted in good faith and dominated solely by a desire to determine the fitness of the person under charges. p. 642.

7. MUNICIPAL CORPORATIONS---Policemen and Firemen---Hearing for Removal---Notice Required.---The purpose of the notice of hearing for the removal of a policeman or fireman is not merely to inform of the time and place of the proposed hearing, but must also disclose the particular act of delinquency or defect constituting the "cause" for removal. p. 642.

8. MANDAMUS---Against Inferior Tribunal---When will not Lie.---Action for mandate will not lie to control the exercise of judicial power or discretion in an inferior tribunal or to control its action merely because it may have committed an error in the trial and decision of a matter which it had jurisdiction to try and decide. p. 642.

9. MUNICIPAL CORPORATIONS---Policemen and Firemen---Removal From Office---When Court will Review Action for Removal.---If the "cause" assigned for dismissal of a policeman or fireman bears no reasonable relation to the accused's fitness, or capacity to hold the position in question, or if there is no evidence to support a finding of "cause" within the meaning of the statute as construed by the court, or if the hearing, though regular in form, is in truth not a fair hearing, it is the court's duty to declare void a dismissal under such circumstances and to give relief in an action for mandate. p. 642.

10. MUNICIPAL CORPORATIONS---Policemen and Firemen---"Cause" for Dismissal Defined.---The statute forbids "politics" being considered a "cause" and no "cause" is a legal cause unless it bears a reasonable relation to the person's fitness for holding the office, or his incapacity to discharge the duties thereof. (10864 Burns Ann. Ind. St 1926.) p. 644.

11. MUNICIPAL CORPORATIONS---Policemen and Firemen---Removal from Office---Power of Court to Review Decision.---A circuit or superior court has the power to review the action of a board of safety in discharging a policeman for the purpose of determining whether it acted within the law. (10864 Burns Ann. Ind. St. 1926.) p. 644.

12. APPEALS---Review of Ruling on Demurrer---Conclusions Must be Considered as Facts Required to Sustain Them.---In reviewing ruling of trial court on demurrer to complaint, an appellate tribunal must consider allegations of conclusions as the allegation of all facts necessary to sustain them. (360 Burns Ann. Ind. St. 1926.) p. 645.

13. MANDAMUS---To Compel Board of Public Safety to Vacate Order Dismissing Policeman---Complaint Held Sufficient.---Complaint alleging that the public safety board, actuated solely by prejudices, politics, and by personal or selfish motives, unlawfully conspired together to prefer charges against a police officer; that the finding and order of the board was not warranted by any evidence; that the hearing was unlawful, arbitrary and fraudulent, and made in bad faith as a mere matter of form; that prior and also at time of pretended hearing the board announced that it would be useless for police officer to make any defense to charges, for the reason that it was the intention of the board to dismiss such officer from the police force; and that the order was not the result of a bona fide hearing upon bona fide charges, is sufficient to state a cause of action in mandate to compel public safety board to vacate its order discharging such police officer. p. 645.

From Vigo Superior Court; Frank S. Rawley, Special Judge.

Mandamus proceeding by the State of Indiana, on the relation of Jesse Felthoff, against Clement J. Richards and others, members of the Board of Public Safety of the City of Terre Haute, From a judgment for the defendants on demurrer to the complaint, the relator appealed.

Reversed.

Frank C. Riley, Fox & Price and Hottel & Patrick, for appellant.

Miller Davis, Clay A. Phillips, Charles A. Crawford and Leonard P. Kincade, for appellees.

OPINION

Treanor, J.

The relator, Jesse Felthoff, in the name of the State, brought his action for mandate in the Superior Court of Vigo county to mandate the appellees, constituting the Board of Public Safety of the city of Terre Haute, "to set aside and vacate an alleged unlawful, arbitrary, fraudulent and void order of said Board, discharging the relator from the police force of said city, and to reinstate said relator as a police officer in the police force of said city."

Issues of law were formed by demurrer to the amended complaint, the grounds of demurrer being (1) that the Superior Court had no jurisdiction of the subject matter of the action and (2) that the complaint did not state facts sufficient to constitute a cause of action for mandate.

The trial court sustained the demurrer and upon relator's refusal to plead further judgment was entered for the defendant. The error relied upon in this appeal is that the court erred in sustaining the demurrer to the amended complaint.

We do not think appellee's first ground of demurrer is tenable. As we construe the leading allegations of the complaint, it is an action for mandate, and, by statute (§§ 1244, 1631 and 1640 Burns Ann. Ind. St. 1926) the Vigo Superior Court is given jurisdiction of that class of cases; but noticing appellees' contention it would seem that they are laboring under the impression that insufficiency of facts in a complaint affects jurisdiction. This is not true. Lack of jurisdiction of subject matter contemplated by the statute (§ 362, cl. 1, Burns Ann. Ind. St. 1926) as grounds for a demurrer, means that the court does not have jurisdiction of the general subject or of a general class of cases to which the particular case belongs. (McCoy v. Able et al., 131 Ind. 417; 30 N.E. 528.) The gist of appellees' objection on this ground seems to be that the appellant's complaint amounts to an appeal from the action of the Board of Safety and for this reason the Vigo Superior Court is without jurisdiction. We quite agree with appellees that there can be no appeal from the action of the Board of Public Safety to the courts; but having determined that this is not an appeal but an action in mandate, our further consideration must be directed to whether or not the complaint states facts sufficient to constitute a cause of action, which is the second ground of demurrer.

In considering this question we must, of course, take as true all facts well pleaded, and if these facts show that relator was dismissed without cause or a proper hearing, within the meaning of the statute (§§ 10859 and 10864, Burns Ann. Ind. St. 1926) as construed by this Court, then the trial court erred in sustaining the demurrer.

The police department of the city of Terre Haute is under the control of a Board of Public Safety and such board has power to dismiss a member of the police force, but only for "cause, other than politics, after an opportunity for a hearing," etc. (§ 10864, Burns, supra).

"If, as declared, they cannot be removed except for cause other than politics, it is reasonable to assume from the language or terms employed in the statute that the legislature intended that they should hold their positions during good behavior, unless physically incapacitated from discharging the legitimate duties thereof." Roth v. State, ex rel., 158 Ind. 242, 252; 63 N.E. 460.

"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. Mechem on Public officers, § 457; People v. Fire Commissioners, 72 N.Y. 445; People v. Fire Commissioners, 73 N.Y. 437." Roth v. State, ex rel., supra.

"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." Shira v. State, ex rel., 187 Ind. 441, 444; 119 N.E. 833.

The General Assembly has recognized the sound public policy of...