State ex rel. Schroeder v. Morris, 25105.

• Decision Date: 18 February 1927
• Docket Number: No. 25105.,25105.
• Citation: 199 Ind. 78,155 N.E. 198
• Parties: STATE ex rel. SCHROEDER et al. v. MORRIS, Mayor, et al.
• Court: Indiana Supreme Court

199 Ind. 78

155 N.E. 198

STATE ex rel. SCHROEDER et al.

v.MORRIS, Mayor, et al.

No. 25105.

Supreme Court of Indiana.

Feb. 18, 1927.

Appeal from Floyd Circuit Court; John N. Paris, Judge.

Action in mandate by the State, on the relation of Walter D. Schroeder and others, against Robert A. Morris, Mayor of the City of New Albany, and others. From the judgment relators appeal. Reversed with instructions.Claude B. McBride and Jonas G. Howard, both of Jeffersonville, for appellants.

Charles R. Turner and Charles P. Tighe, both of New Albany, for appellees.

MYERS, J.

The relators, each of whom are members of the regularly organized and paid fire force of the city of New Albany, appellants here, on June 19, 1925, commenced this action in mandate in the Floyd circuit court against the appellees, the mayor of the city of New Albany, two members of the board of safety, and members of the common council of that city, for an order compelling such city officers to comply with the alleged provisions of chapter 57, p. 196, Acts Sp. Sess. 1920 (section 10878, Burns' 1926).

Separate demurrers to the complaint for want of facts, filed by the mayor, the members collectively of the board of safety, and the members collectively composing the common council, were sustained, and each of these rulings are separately assigned as errors.

The complaint shows that the city of New Albany, according to the last proceding census of the United States, has a population of more than 15,000; that it has a regularly organized and paid fire force; that on January 1, 1921, and continuously since that time, the mayor, board of safety, and common council of the city of New Albany have failed and refused to divide the fire department into two bodies or platoons, one to perform day service and one to perform night service, and as a result of such refusal relators, ever since January 1, 1921, and now, are performing double duty and work, without additional compensation; that the common council refuse to make an appropriation sufficient to pay firemen necessary to a fire department of two platoons, and that relators are without an adequate legal remedy.

The statute, supra, here in question, reads as follows:

“That the fire department or fire force in every city or town with a population exceeding fifteen thousand [15,000] according to the last preceding census of the United States, and having a regularly organized paid fire department or fire force, shall be divided into two bodies or platoons, one to perform day service and one to perform night service. In cases of emergency, the chief of the fire force, or the assistant chief or the chief officer in charge at any fire, shall have power to assign all members of the fire force to continuous duty, or to continue any member thereof on duty, as may be necessary. No member of either of said platoons shall be required to perform continuous duty for a longer consecutive period than 24 hours, excepting as may be necessary to equalize the hours of duty and service and also except when necessary as above provided.

This act shall take effect the first day of January, 1921.”

[1][2] In the first place this statute is awkwardly worded, but, since we may disregard grammatical construction when, from the language used, the legislative intention is explicit (State v. Myers, 146 Ind. 36, 44 N. E. 801;Grand Trunk, etc., R. Co. v. State, 40 Ind. App. 695, 82 N. E. 1017), it is our conclusion that the Legislature purposed by this enactment that a regularly municipally organized paid fire department or fire force, in every city or town, with a population exceeding 15,000, according to the last preceding United States census, shall be divided into two bodies or platoons, one to perform day service and the other to perform night service.

The theory of the complaint is that appellees, as city officers, by the above statute, were charged with a mandatory and imperative ministerial duty; that is to say, the law having expressly commanded a specific thing to be done involving administrative action, in this case imposed upon appellees alone, they thereby were charged with the performance of an undiscretionary duty.

[3] The memorandum designed by the statute (Burns' 1926, § 362, clause 6) does not contemplate, as a part thereof, argument and general observations of counsel. Its purpose is to point out clearly and concisely the facts wanting in the pleading to make it sufficient on the theory upon which it is predicated. State ex rel. v. Bartholomew, 176 Ind. 182, 95 N. E. 417, Ann. Cas. 1914B, 91;Hedekin Land, etc., Co. v. Campbell, 184 Ind. 643, 112 N. E. 97;Locomotive Engineers', etc., Ass'n v. Higgs, 79 Ind. App. 427, 135 N. E. 353.

[4][5] By eliminating the redundant matter in the memorandum before us, the defects in the complaint relied on are, want of facts showing: (1) Interest or special damage entitling relators to invoke the statute; (2) a joint cause of action in their favor; (3) statute mandatory and not directory; and (4) it affirmatively appears that the statute on which relators rely is unconstitutional and void.

It appears that relators were all employed in one common cause and performing like service in compliance with the requirement of a regularly organized paid fire department of a city having a population within the classification of cities over which the legislative enactment in question was made to apply. They had the same special and peculiar interest in the enforcement of the statute which purposed to lessen the hours of continuous duty of each and all of them. The refusal of the city officers to do their duty under the statute in question is the act of which they all complain. This showing of a common interest in the final determination of the real question at issue was sufficient to repel the first two objections made to the complaint. Shira v. State ex rel., 187 Ind. 441, 119 N. E. 833;State ex rel. v. Mount, 151 Ind. 679, 51 N. E. 417, 52 N. E. 407;Cress v. State ex rel. (Ind. Sup.) 152 N. E. 822;State ex rel. Taro v. Everett, 101 Wash. 561, 172 P. 752, L. R. A. 1918E, 411;Board of Trustees, etc., v. State ex rel. Eaton (1911) 175 Ind. 147, 93 N. E. 851;Hughes v. Outlaw et al. (1916) 197 Ala. 452, 73 So. 16, Ann. Cas. 1918C, 872; Ann. Cas. 1912B, p. 420, note; 38 C. J. 842, § 548.

[6][7] According to the last United States census, we judicially know (City of Huntington v. Cast, 149 Ind. 255, 48 N. E. 1025) that the city of New Albany has a population of over 20,000 and therefore a city of the third class. Acts 1909, p. 13; section 10261, Burns' 1926. Its legislative authority is vested in its common council (Acts 1905, p. 244, § 47; section 10278, Burns' 1926), which is empowered to appropriate money for the support of the city's various departments (Acts 1905, p. 245, § 52; section 10283, Burns' 1926), of which its board of public safety is one, and under its control is the fire department (Acts 1909, p. 13, § 8; section 10860, Burns' 1926).

It is the duty of the mayor to preside at all meetings of the common council, and, in case of a tie, cast the deciding vote. Acts 1905, p. 244, § 49; section 10280, Burns' 1926. He is given veto power as to all ordinances, orders, or resolutions for the appropriation of money for any purpose. In case of a veto, two-thirds vote of all the council members elect is required to again pass such ordinance,order, or resolution. Section 10283, supra.

While the question has not been raised or presented, it will not be improper to suggest that it thus appears that the mayor, common council, and board of safety, appellees here, and all by the complaint shown to have refused to comply with the alleged mandate of the statute, may severally be important factors in delaying, if not defeating, the alleged purpose of the statute, and for that reason, and that full relief may be granted in a single action, it was not improper to join them as defendants. Gruber, Trustee, v. State ex rel., 196 Ind. 436;148 N. E. 482.

[8] However, appellees contend that the statute in question is directory and not mandatory. This contention is based upon the thought that the statute is remedial, and its application is left to official discretion. They say that the complaint brings the city of New Albany within the letter of the statute, but not within the reason of it, and hence “cases not within the reason, though within the letter, shall not be taken to be within the statute”-citing Traudt v. Hagerman, 27 Ind. App. 150, 60 N. E. 1011. In support of this contention they assert that the complaint must state facts showing that the enforcement of the statute would better serve the safety of the community of New Albany, or that its enforcement was necessary for its welfare, or that the present fire department was inefficient, or that the working conditions of the firemen were bad. All of these matters were pertinent in determining the wisdom, expediency, justice, or reason impelling the Legislature to act, but they furnish no substance for judicial interference with legislative judgment. State ex rel. v. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893;Kerr v. Perry School Township, 162 Ind. 310, 314, 70 N. E. 246;State v. Barrett, 172 Ind. 169, 87 N. E. 7.

[9] Let it be said that the statute is remedial, but that fact...