State ex rel. Ham v. Hulley
| Decision Date | 07 December 1922 |
| Docket Number | 23,979 |
| Citation | 137 N.E. 177,192 Ind. 547 |
| Parties | State of Indiana, ex rel. Ham v. Hulley, Mayor, et al |
| Court | Indiana Supreme Court |
From Grant Circuit Court; J. F. Charles, Judge.
Action by the State of Indiana, on the relation of Avery G. Ham against Elkanah Hulley, mayor of the city of Marion, and others. From a judgment for defendants, the relator appeals.
Affirmed.
Frank O. Switzer, Walter Bent and John A. Kersey, for appellant.
Marshall Williams and Gus S. Condo, for appellees.
Appellant 's relator brought an action of mandamus against the eight appellees, alleged to be the mayor and common council of the city of Marion, Indiana, asking that the defendants (appellees) be required "to pay the relator his salary" as a patrolman of said city from July 15, 1914 to August 15, 1918, a period of four years and one month. Neither the city of Marion as a corporation nor any of its officers other than the mayor and councilmen was made a party to the action. A demurrer to the complaint was overruled, and demurrers to each of the third, fourth, fifth, sixth and eighth paragraphs of answer were sustained, to each of which rulings appellee excepted, and has assigned them as cross-errors. Issues of fact were formed by an answer in denial of the complaint, and a reply in denial of the second and seventh paragraphs of answer. On proper request the court made a special finding of facts, and stated four conclusions of law thereon, to the general effect that appellant (the plaintiff) was not entitled to recover anything, and must pay the costs. Appellant excepted to each conclusion of law, and the assignment of errors presents them for review.
Of the facts alleged in the complaint and affirmative paragraphs of answer, the court found the following, among others: On July 15, 1914, the relator was a patrolman of the city of Marion serving under an appointment by the board of metropolitan police commissioners; that he received no salary as patrolman from July 15, 1914, to August 15, 1918, and the salary of a patrolman for that time at the established rate would be $ 3,892.50. In June, 1914, the members of said board, being city officers other than the appellees or their predecessors in the offices of mayor and councilmen made an unlawful attempt to dismiss relator from his office of patrolman, and thereafter during said period of four years and one month, prevented him from performing his duties as a patrolman and appointed other persons to the offices of relator and certain other patrolmen who were thus unlawfully dismissed, and the salaries of relator and his fellow patrolmen unlawfully dismissed were paid to and received by the other persons so appointed, and all the funds appropriated for the maintenance of the police department of Marion were expended in paying persons, other than relator, for performing, and who did perform, all the duties of the various offices of the police department, including the duties of the relator. During all the time he was so excluded from said office the relator was a resident of Marion, in good health, of sound mind and good moral character, able to speak and write the English language, and ready, able and willing to perform all the duties of a policeman therein. The city of Marion, by appropriations of money to pay attorneys and costs, and otherwise, took an active part in defending an action which appellant and three others of the unlawfully dismissed patrolmen brought against the said members of the board of metropolitan police commissioners by whom they were dismissed, and in said action, to which neither the city as a municipal corporation, the mayor or councilmen then in office, nor any of the appellees in any capacity, is shown to have been a party, but which the city and its officers prolonged by appropriations of money and otherwise, appellant and the other dismissed patrolmen, on June 8, 1916, recovered a judgment of mandamus, commanding the members of said board to reinstate them in their offices on the police force as of the date of their dismissal, and upon an appeal to the Supreme Court, that ...
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