Wencke v. City of Indianapolis
| Decision Date | 29 December 1981 |
| Docket Number | No. 2-681A203,2-681A203 |
| Citation | 429 N.E.2d 295 |
| Parties | Elwood WENCKE, Appellant (Plaintiff Below), v. CITY OF INDIANAPOLIS, Eugene Gallagher, Chief of the Indianapolis Police Department, and Donald Adams, Lieutenant in charge of Personnel of the Indianapolis Police Department, Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
William A. Hasbrook, Ruckelshaus, Roland & O'Connor, Indianapolis, for appellant.
Richard S. Ewing, Chief Litigation Counsel, Susan L. Macey, Asst. Corp. John P. Ryan, Corp. Counsel, Indianapolis, for appellees.
Elwood Wencke appeals the decision of the trial court denying his petition to enjoin enforcement of the Indianapolis Police Department's mandatory retirement age of 65. He raises the following issues on appeal:
1) whether application of a mandatory retirement age of 65 to Wencke violated the constitutional prohibition against impairment of contracts;
2) whether the Indianapolis Police Department is estopped from enforcing a mandatory retirement age of 65;
3) whether the trial court erred in admitting expert testimony concerning the fitness of 65 year old police officers to serve on the Indianapolis Police Department; and
4) whether the mandatory retirement age of 65 as applied to Indianapolis police officers violates the Federal Age Discrimination Act.
Because the disposition on Wencke's first issue requires reversal of the trial court's decision, we do not address his additional allegations of error.
Reversed and remanded.
Elwood Wencke, born March 31, 1915, was employed by the Indianapolis Police Department as a Field Sector Lieutenant. He was first appointed to the department on June 16, 1946. At the time of his appointment the mandatory retirement age of Indianapolis police officers was 70 years. I.C. 19-1-1-1 (now repealed) provided in pertinent part:
This provision was not expressly repealed by our legislature until 1981.
In 1970, however, the legislature enacted the "Consolidated First Class Cities and Counties Act" which reorganized the local municipal and county government in Marion County, thus eliminating the overlapping jurisdictions of various county and municipal boards and departments. I.C. 18-4-1-1-18-4-15-2 (now repealed). Chapter 12 of that act specifically provides for the organization and operation of the Department of Public Safety of the Consolidated City of Indianapolis. Because the act did not contain any provision concerning the mandatory retirement of Indianapolis police officers, I.C. 19-1-1-1 apparently remained the operative statute governing the mandatory retirement of policemen. Then, in 1975, the legislature added I.C. 18-4-12-20.5 (now repealed) to the Unigov Act which lowered the mandatory retirement age to 65. It provided:
"A member of the police force shall be required to retire from the force no later than the day of his sixty-fifth birthday."
Wencke was notified by the City he was to be officially retired from the police department pursuant to I.C. 18-4-12-20.5 effective March 31, 1980, his sixty-fifth birthday. The City acknowledged Wencke was physically and mentally fit and that he satisfactorily performed his duties as a field sector lieutenant. His retirement, however, was mandated by the City in accordance with the statute.
Wencke contends the application of I.C. 18-4-12-20.5 in the present case impairs a contractual obligation and runs afoul of the contract clause of both the United States and Indiana Constitutions. U.S.Const. Art. 1 § 10; Ind.Const. Art. 1 § 24. He asserts I.C. 19-1-1-1, which was in effect at the time he was appointed to the department and which had not been expressly repealed at the time this action was initiated, should govern.
As a general rule, two statutes dealing with the same subject matter should be read together and, if possible, construed so as to give effect to each. Matter of Lemond, (1980) Ind., 413 N.E.2d 228. However, where two statutes are in irreconcilable conflict the earlier statute will be implicitly repealed and the later statute will govern. State ex rel. Indiana State Bd. of Finance v. Marion County Superior Court, Civil Division, (1979) Ind., 396 N.E.2d 340. In the instant case, I.C. 18-4-12-20.5 and 19-1-1-1 are in direct conflict regarding the mandatory retirement age applicable to police officers of the Consolidated City. Therefore, we conclude by the adoption of I.C. 18-4-12-20.5 our legislature manifested its intent to repeal I.C. 19-1-1-1 and lower the mandatory retirement age to 65.
It is well settled that the power to enact statutes and ordinances has as a necessary incident the power to repeal. The General Assembly may not by any enactment limit the rights of future General Assemblies. Hamilton County Council v. State ex rel. Groff, (1949) 227 Ind. 608, 87 N.E.2d 810. This power to repeal, however, is subject to constitutional restrictions such as the prohibition against impairment of contracts. If, in the instant case, the enactment of I.C. 18-4-12-20.5 impermissibly impaired a contractual obligation owed Wencke, I.C. 19-1-1-1 will govern.
We agree that in Indiana police are employees and their relationship with the City is strictly contractual. State ex rel. Palm v. City of Brazil, (1947) 225 Ind. 308, 73 N.E.2d 485, 74 N.E.2d 917; Foley v. Consolidated City of Indianapolis, (1981) Ind.App., 421 N.E.2d 1160. The terms and conditions of the contract include the relevant statutory provisions which exist at the time the contract is made as if such provisions were expressly incorporated. Evansville-Vanderburgh School Corporation v. Moll, (1976) 264 Ind. 356, 344 N.E.2d 831; Foley, 421 N.E.2d at 1163. For example, this court has previously determined that a contract of employment with a police officer included a statutory provision concerning minimum compensation. Kirmse v. City of Gary, (1944) 114 Ind.App. 558, 51 N.E.2d 883. See also Bruck v. State ex rel. Money, (1950) 228 Ind. 189, 91 N.E.2d 349.
In the present case the mandatory retirement age provided by statute at the time Wencke entered the police department (age...
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