State v. Reichert
| Decision Date | 29 June 1948 |
| Docket Number | 28334,28335. |
| Citation | 80 N.E.2d 289,226 Ind. 358 |
| Parties | STATE v. REICHERT. |
| Court | Indiana Supreme Court |
Appeal from Vanderburgh Circuit Court; John A Posey, Special judge.
Cleon H. Foust, Atty. Gen., Frank E. Coughlin, 1st Deputy Atty. Gen., George W. Hadley, Deputy Atty. Gen., and Milford M. Miller, Pros. Atty., of Evansville, for appellant.
Lockyear & Lockyear, William D. Hardy, Benj. F. Zieg, all of Evansville, for appellee.
There were two appeals which were consolidated in this court for briefing and argument and now both are treated in this opinion. Each appeal involved a separately returned indictment against the same person and each indictment was attacked upon the same grounds.
The indictment in Cause No. 28,334, was in one count and charged that the defendant was, at the times mentioned in the indictment, the duly elected, qualified and acting mayor of the City of Evansville, and that he was, as such mayor charged by law with the duty of causing the laws of the State of Indiana to be enforced and was responsible for the good order and efficient government of said city, but that he continuously, during his term of office as mayor, unlawfully wilfully and corruptly was guilty of oppression, malconduct and misfeasance in the discharge of the duties of his office as mayor, in that he unlawfully, wilfully and corruptly failed and refused to enforce the laws of the State of Indiana with respect to gambling, gaming and pool selling. It is alleged in the indictment that there were 46 separate establishments in Evansville, commonly called 'Horse Race Bookie Shops,' equipped and organized to take bets and wagers on the results of horse races. The names of the persons operating these 46 establishments and the addresses at which said establishments were operated were set forth specifically in said indictment, and it is alleged that the defendant at all times mentioned in the indictment knew the names of the persons operating said 'Bookie Shops' and the locations thereof, and that same were operated unlawfully and contrary to the criminal laws of the State of Indiana, but that said defendant failed and refused to cause said persons or any of them to be arrested or to cause the criminal laws of the State of Indiana to be enforced against any of said persons.
It is further alleged that the defendant unlawfully, wilfully and corruptly directed and requested certain persons to collect monies from said named 'Bookie Shop' operators and to pay same over to him for 'political or other purposes,' the exact nature of which is alleged to be unknown to the Grand Jury and that said persons did collect large sums of money from said operators and did thereafter unlawfully pay said money over to the defendant in his office as mayor of the City of Evansville and that said defendant accepted said money.
To this indictment appellee filed a motion to quash upon three grounds, viz.: (1) The Grand Jury which found said indictment had no legal authority to inquire into the offense charged therein; (2) the facts stated in said indictment do not constitute a public offense; and (3) said indictment does not state the offense charged with sufficient certainty.
In connection with the first ground upon which the motion to quash is based, appellee says that a grand jury can inquire into and present indictments only for felonies and misdemeanors. § 9-807, Burns' 1942 Replacement. They argue that only nonfeasance is charged in the indictments and that mere nonfeasance is not made an offense by the statute under which the indictments were returned and that therefore the grand jury was without authority to inquire into the facts alleged. With this position we cannot agree. § 9-824, Third and Fifth, Burns' 1942 Replacement, provides that the grand jury may inquire into wilful and corrupt misconduct in office of public officers of every description, and into every charge of extortion preferred against any such officer, and into violations of the criminal laws of the state generally, of which the court has jurisdiction. The grand jury had the right to inquire into violations of the statute involved and to return indictments if it discovered facts which, in good faith, it thought constituted a violation. It may make mistakes, but the fact that a mistake is made does not permit challenge of its power. We think, therefore, that the grand jury in this case was within its legal authority in returning the indictment before us.
The statute under which this indictment was returned is a part of the 1905 Cities and Towns Act, and reads as follows:
'In case the mayor or other officer of any city or town shall wilfully or corruptly be guilty of oppression, malconduct or misfeasance in the discharge of the duties of his office, he shall be liable to be prosecuted by indictment or affidavit in any court of competent jurisdiction, and, on conviction, shall be fined not exceeding one thousand dollars ($1,000), and the court in which such conviction shall be had shall enter an order removing him from office.' § 48-1304, Burns' 1933.
This case comes before us upon the ruling of the court on the motion to quash the indictment, and the question which we must decide is whether or not the facts alleged in the indictment constitute oppression, malconduct or misfeasance on the part of appellee as mayor of the City of Evansville and, if so, whether the offense is charged with sufficient certainty.
Section 80 of the Cities and Towns Act of 1905 says:
'It shall be the duty of the mayor:
* * *
§ 48-1502, Burns' 1933.
Evansville is a city of second class and it is provided by statute that in such cities with a population of between 80,000 and 100,000 (which includes Evansville) the mayor shall appoint a board of public safety and a chief of police and such board serves at the pleasure of the mayor and the mayor has the power to remove any member of such board and fill any vacancy made by such removal. § 48-1215, Burns' 1947 Pkt.Supp.
The mayor likewise has the right to remove the chief of police appointed by him, § 48-1502, Burns' 1933 and § 48-1222, Burns' 1947 Pkt.Supp.; State ex rel. Harrell v. City of Wabash, 1946, 116 Ind.App. 682, 65 N.E.2d 494, although if such chief, when appointed, came from a lower rank in the police force he can only be demoted and can be removed from the force only after charges are filed and served upon him and a hearing held by the board of public safety. § 48-6105, Burns' 1947 Pkt.Supp.
The board of public safety has immediate control of the police force and its organization. It fixes the number of members of the police force and divides such city into police precincts and promulgates rules and regulations for the appointment of members of the police force and for their government. It is provided that the police force shall be as nearly as possible equally divided politically and no member thereof shall be dismissed except for cause, after written notice of charges made against him notifying him of the time and place of hearing and after an opportunity for hearing is given. § 48-6102, Burns' 1933 and § 48-6105, Burns' 1947 Pkt.Supp. By statute the chief of police shall have exclusive direction and control of the police force, subject to rules and regulations and orders of the board of public safety. § 48-6102, Burns' 1933. The same statute also specifically provides that 'in time of peril, danger, riot, extensive conflagration, disorder, or the apprehension thereof, the chief of the fire force and the chief of the police force shall, for the time being, be subordinate to the mayor and obey his orders and directions.' This implies that at other times the chief of police is not subordinate to the mayor and need not obey his orders in directing the police force in the exercise of its statutory duties. If it had been the purpose of the legislature to put the mayor in control at all times it could have said so and can still say so.
The officers and members of the police force are made conservators of the peace in such city and possess all the common law and statutory powers of constables. § 48-6107, Burns' 1933. It is made the specific statutory duty of such police force, and the members thereof are especially empowered, to prevent crime, detect and arrest offenders; carefully observe and inspect all places of business under license, or required to have same, all houses of ill fame or prostitution, and houses where common prostitutes resort or reside, all lottery or policyshops, all gambling-houses, cockpits, dance houses and resorts and to suppress and restrain all unlawful or disorderly conduct or practices, and enforce and prevent the violation of all ordinances in force in such city. § 48-6110, Burns' 1933.
Neither the Cities and Towns Act of 1905, nor any other statute, makes the mayor of a city of the second class, such as Evansville, a conservator of the peace or gives him the authority of a police officer or any other arresting officer.
Members of the police force are, as we have indicated above, the ones upon whom is imposed the primary duty of making arrests, and, except in certain emergencies, they are not subject to his orders and directions and may not be discharged by the mayor or anyone else except after charges have been filed with the board of public safety and notice has been given and a hearing is held.
It is appellant's position that the fact...
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