Town of Speedway v. Nilson, No. 2-378A87

Docket NºNo. 2-378A87
Citation182 Ind.App. 620, 395 N.E.2d 1292
Case DateOctober 30, 1979
CourtCourt of Appeals of Indiana

Page 1292

395 N.E.2d 1292
182 Ind.App. 620
TOWN OF SPEEDWAY, Appellant-Defendant,
v.
John NILSON, Appellee-Plaintiff.
No. 2-378A87.
Court of Appeals of Indiana, Fourth District.
Oct. 30, 1979.

[182 Ind.App. 621]

Page 1293

Daniel D. Johns, Henry C. Ryder, Roberts, Ryder, Rogers & Neighbours, Indianapolis, for appellant-defendant.

Thomas A. Deal, Barteau & Deal, Speedway, for appellee-plaintiff.

MILLER, Presiding Judge.

On July 9, 1976, Officer Nilson was suspended from the Town of Speedway Police Force without pay for a period of thirty days (from July 6, 1976 to August 5, 1976), pursuant to a ruling of the Board of Police Commissioners. Nilson was found guilty after a hearing held on July 9, 1976 of neglect of duty and insubordination to his ranking officer. Nilson appealed the suspension to the Marion Superior Court. The trial court overruled Speedway's Motion to Dismiss which alleged failure to state a claim upon which relief could be granted and lack of subject matter jurisdiction and reversed the Board's decision. It ordered Nilson be credited for the thirty days suspension, be reimbursed for that period and his personal record be expunged of all references of the suspension. Speedway appeals from this judgment, claiming the following: (1) since Nilson was suspended for a period not in excess of thirty days, he had no right to appeal under the provisions of Ind.Code 19-1-25-1 which permits appeals when the suspension of a town police officer exceeds thirty days; and (2) the evidence before the police board was sufficient to support the suspension. Because of our decision on the first issue, the second need not be discussed. We reverse.

[182 IND.APP. 622] DECISION:

The Speedway Board of Police Commissioners was created in accordance with Ind.Code 19-1-25-1 which provides for the establishment of town boards of police commissioners and its authority to discipline police officers for cause is granted in Ind.Code 19-1-25-2, which provides in pertinent part:

"Such commissioners shall have the power for cause assigned on a public hearing and on due notice according to the rules to be promulgated by them to remove or suspend from office, or for a definite period, deprive of pay any member or officer of the police force: Provided, however, That any member of such police force who shall be dismissed or suspended therefrom for any period in excess of thirty (30) days shall have the right to appeal to the circuit or superior court of the county in which such town is located from such decision of dismissal or suspension by said board, all as provided in chapter 282 (Ind.Code 18-1-11-3) of the Acts of 1935 of the General Assembly of the State of Indiana. . . . "

(Our emphasis.)

Page 1294

Nilson contends the following provision of Ind.Code 18-1-11-3, 1 then in effect, is controlling in this case:

"Any member of such fire or police force who is dismissed from such force, as aforesaid, or Is suspended therefrom for any period in excess of ten (10) days shall have the right to appeal to the circuit court or superior court of the county in which such city is located, from such decision of dismissal or suspension by said board, but shall not have the right of appeal from any other decision. . . . "

(Our emphasis.)

Prior to 1971 this section allowed for judicial review of suspensions [182 Ind.App. 623] greater than thirty days. Thus, Nilson argues that the reference in Ind.Code 19-1-25-2 to Ind.Code 18-1-11-3 incorporates not only the procedural appellate provisions, but also the substantive right of judicial review including the "in excess of ten days" provision in the 1971 amendment.

Speedway contends that (1) Ind.Code 19-1-25-2 restricts appeals to "in excess of thirty days" and (2) since Nilson was suspended for a period of exactly thirty days, he was precluded by statute from seeking judicial review of his...

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4 practice notes
  • Gallagher v. Marion County Victim Advocate Program, Inc., No. 2-777-A-292
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Marzo 1980
    ...is aware of existing law on the same subject. Schrenker v. Clifford, (1979) Ind., 387 N.E.2d 59; Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292. Thus, a proper approach in seeking legislative intent is to consider the history of law on that subject. Harris v. Muncie, (1975) 163 Ind.Ap......
  • Gerhardt v. City of Evansville, No. 1-779A207
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Agosto 1980
    ...with this opinion. CHIPMAN and MILLER, JJ., concur. --------------- 1 The City cites Town of Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292 in support of its argument. In Town of Speedway the officer appealed on the basis of the statute. He apparently did not proceed under the theory ......
  • State ex rel. Dunlap v. Cross, No. 3-579A125
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Abril 1980
    ...and beyond constitutional attack." (Emphasis supplied) Finally, the Court of Appeals in Town of Speedway v. Nilson (1979), Ind.App., 395 N.E.2d 1292, recently addressed this issue. It decided that police officer Nilson did not have the right to appeal his suspension since it was not for a p......
  • Lemond, Matter of, No. 680
    • United States
    • Indiana Supreme Court of Indiana
    • 2 Diciembre 1980
    ...thirteen and fifteen of the Act, and for further proceedings not inconsistent with the views stated herein." In re Lemond, supra, 395 N.E.2d at 1292. Sections thirteen and fifteen of the UCCJA provide for the recognition and enforcement of out-of-state decrees as though they were Indiana So......
4 cases
  • Gallagher v. Marion County Victim Advocate Program, Inc., No. 2-777-A-292
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Marzo 1980
    ...is aware of existing law on the same subject. Schrenker v. Clifford, (1979) Ind., 387 N.E.2d 59; Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292. Thus, a proper approach in seeking legislative intent is to consider the history of law on that subject. Harris v. Muncie, (1975) 163 Ind.Ap......
  • Gerhardt v. City of Evansville, No. 1-779A207
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Agosto 1980
    ...with this opinion. CHIPMAN and MILLER, JJ., concur. --------------- 1 The City cites Town of Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292 in support of its argument. In Town of Speedway the officer appealed on the basis of the statute. He apparently did not proceed under the theory ......
  • State ex rel. Dunlap v. Cross, No. 3-579A125
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Abril 1980
    ...and beyond constitutional attack." (Emphasis supplied) Finally, the Court of Appeals in Town of Speedway v. Nilson (1979), Ind.App., 395 N.E.2d 1292, recently addressed this issue. It decided that police officer Nilson did not have the right to appeal his suspension since it was not for a p......
  • Lemond, Matter of, No. 680
    • United States
    • Indiana Supreme Court of Indiana
    • 2 Diciembre 1980
    ...thirteen and fifteen of the Act, and for further proceedings not inconsistent with the views stated herein." In re Lemond, supra, 395 N.E.2d at 1292. Sections thirteen and fifteen of the UCCJA provide for the recognition and enforcement of out-of-state decrees as though they were Indiana So......

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