State ex rel. Todd v. Hatcher

Decision Date17 October 1973
Docket NumberNo. 3--373A30,3--373A30
Citation158 Ind.App. 144,301 N.E.2d 766
PartiesSTATE of Indiana on relation of William TODD, Jr., Plaintiff-Appellant, v. Richard Gordon HATCHER, Individually and as Mayor of the City of Gary, Indiana, et al., Defendants-Appellees.
CourtIndiana Appellate Court

Hilbert L. Bradley, Gary, for plaintiff-appellant.

Charles A. Ruckman, Corporation Counsel, Gary, for defendants-appellees.

HOFFMAN, Chief Judge.

This is an appeal by plaintiff-appellant William Todd, Jr., from a judgment affirming the finding and decision of the Gary Fire Civil Service Commission (Commission).

The trial court found that on February 18, 1972, the Fire Chief of the City of Gary submitted a letter to the Board of Public Works and Safety (Board) regarding certain alleged instances of misconduct on the part of Todd. On February 22, 1972, Todd and counsel appeared before the Board and challenged Board's jurisdiction over the subject-matter and person in question. Subsequently, Board entered an order stating that it possessed such jurisdiction and that the Fire Chief had correctly followed civil service procedure. The order further accepted the facts as stated in the letter of the Fire Chief and suspended Todd indefinitely. The Board did not call witnesses, receive and transcribe sworn testimony or generally comply with the hearing provisions of IC 1971, 18--1--11--3, Ind.Ann.Stat. § 48--6105 (Burns Cum.Supp.1972).

Following the entry of Board's order, Todd filed a demand for investigation before Commission. Pursuant to a hearing on June 16, 1972, Commission entered a decision amending the action of Board. This amendment ordered Todd's suspension without pay from February 18, 1972, to and including September 30, 1972, and further stated that Todd should be restored to duty and rank on October 1, 1972.

On September 28, 1972, Todd filed a notice of appeal with Commission in compliance with IC 1971, 19--1--37.5--7, Ind.Ann.Stat. § 48--6249h (Burns Cum.Supp.1972). Thereafter, the trial court heard Todd's appeal and on January 26, 1973, entered judgment affirming the decision and finding of Commission.

Todd first contends that his dismissal was in violation of § 48--6105, supra, and § 48--6249h, supra.

The first issue to be considered is whether the hearing provisions of IC 1971, 18--1--11--3, Ind.Ann.Stat. § 48--6105, supra, have been superseded by IC 1971, 19--1--37.5--7, Ind.Ann.Stat. § 48--6249h, supra.

Section 48--6105, supra, provides, in part, as follows:

'Firemen and policemen--Removal--Grounds--Action of commissioners--Trial--Appeal--Bond--Procedure--Finding--Rehearing--Precedence.--E very member of the fire and police forces, including police radio operators and police signal and fire alarm operators, appointed by the mayor, the commissioners of public safety or the board of metropolitan police commissioners, shall hold office until they are removed by said board. They may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual place of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board. * * *.'

Subsequent, IC 1971, 19--1--37.5--1, Ind.Ann.Stat. § 48--6249a et seq. (Burns Cum.Supp.1972), was enacted.

Section 48--6249h, supra, provides, in pertinent part, as follows:

'Discharge--Demotion--Suspension--Procedure--Appeal.--No person in the classified civil service who shall have been permanently appointed or inducted into civil service under provisions of this chapter ( §§ 48--6249a--48--6249x), shall be removed, suspended, demoted or discharged except for cause, and only upon the written accusation of the appointing power, or any citizen or taxpayer, a written statement of which accusation, in general terms, shall be served upon the accused, and a duplicate filed with the commission. The chief of the fire department may suspend a member pending the confirmation of the suspension by the regular appointing power under the chapter which must be within three (3) days. Any person so removed, suspended, demoted or discharged may, within ten (10) days from the time of his removal, suspension, demotion, or discharge, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. * * *

'All investigations made by the commission pursuant to the provisions of this section shall be by public hearing, after reasonable notice to the accused of the time and place of such hearing, at which hearing the accused shall be afforded an opportunity of appearing in person and by counsel, and presenting his defense. * * *.'

Section 48--6105, supra, provides for removal only after an opportunity for a hearing is afforded. Section 48--6249h, supra, provides for suspension pending confirmation by 'the regular appointing power' and a hearing by the Commission after suspension. The two statutes provide for a hearing before different administrative bodies.

The possibility that a member 'may' be suspended prior to a hearing and afforded a hearing before an impartial third body in the latter statute gives rise to a manifest conflict with the mandatory language of the former Act. In this respect, the two statutes cannot be construed in harmony with each other.

Two statutes on the same subject must be construed so as to give effect to both, if possible; however, where the two are repugnant in any of their provisions the latter Act will operate to the extent of the repugnancy as to a repeal of the former even though the latter statute contains no repealing clause. Payne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 238, 148 N.E.2d 537; Kramer v. Beebe (1917), 186 Ind. 349, 355, 115 N.E. 83; State v. Doversberger (1972), Ind.Ct.App., 288 N.E.2d 585, 33 Ind.Dec. 272 (transfer denied).

Therefore, by reason of the fact that § 48--6105, supra, stands in irreconcilable conflict with § 48--6249h, supra, the former and more generally applicable statute must yield to the provisions of the latter.

Such repeal by implication is necessarily limited to the extent of the conflict. Such conflict is existent insofar as § 48--6249h supra, finds applicability, and such applicability is defined by the provisions of § 48--6249a, supra, which provides as follows:

'Civil service for firemen in Lake County.--The provisions of this chapter ( §§ 48--6249a--48--6249x) shall apply to all cities having regularly organized paid fire departments and a population of less than one hundred thousand (100,000) or more than one hundred and twenty-five thousand (125,000) according to the last preceding United States decennial census in counties having three (3) or more second-class cities, Provided, however, That such provisions may be applied to other cities in said counties pursuant to Section 21 ( § 48--6249v) of this chapter.'

Consequently, to the extent that certain municipalities do not meet the requirements of § 48--6249a, supra, or choose not to adopt the civil service system provided for in § 48-- 6249a, et seq., supra, pursuant to § 48--6249v, 1 IC 1971, 19--1--37.5--21, supra, § 48--6105, supra, remains in full force and effect.

In view of the existing repeal by implication, the procedure concomitant to Todd's dismissal could not have transgressed the hearing provisions of both statutes. Rather, such procedure could only have violated § 48--6249h, supra, provided that a violation thereof, in fact, occurred.

Accordingly, the next issue to be considered is whether the procedural requirements of § 48--6249h, supra, were violated.

A review of the aforestated facts relevant to this issue readily discloses proper compliance with procedure except for one uncertainty.

Todd asserts that Commission's failure to timely file a transcript of proceedings with the trial court rendered such proceedings void and entitled him to judgment as a matter of law.

Appellant relies upon City of New Haven v. LeFever (1968), 143 Ind.App. 88, 238 N.E.2d 487 (transfer denied), as being supportive of this contention.

Therein, the Chief of Police of the City of New Haven was summarily removed by the Mayor without any discernable justification. The court, at 89 of 143 Ind.App., at 488--489 of 238 N.E.2d, stated that,

'Appellee served in that capacity until December 30, 1964, when the mayor informed him, 'You no longer have a job.' When appellee asked what the charges were the mayor replied, 'There are no charges. You're just automatically out."

In the case at bar, however, the record indicates proper compliance with the provisions of § 48--6249h, supra, from the time of Todd's suspension by the Fire Chief and throughout all proceedings conducted by Board and Commission.

In Hamilton v. City of Indianapolis (1946), 116 Ind.App. 342, at 346, 64 N.E.2d 303, at 304, the court stated:

'The record in this case shows a strict compliance with statutory procedure from the time the charges against the appellant were filed up to and including the decision of the Board of Safety dismissing him from the service of the police department. At this point the appellant became the moving party or aggressor, and it does not seem essential to the protection of his rights that the provision of the statute in reference to the time within which a transcript should be filed by the board need be strictly complied with, provided such transcript is in fact filed in time to be of service to the parties in the presentation and trial of the case de novo in the court to which it is appealed.'

We are not persuaded by appellant's argument that the proceedings by Commission were void by reason of the delay in filing a transcript where the delay was not significant and where prejudice thereby was not indicated.

The next issue presented for review is whether the...

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