Wilmont v. City of South Bend

• Decision Date: 18 May 1943
• Docket Number: 27853.
• Citation: 48 N.E.2d 649,221 Ind. 538
• Parties: WILMONT v. CITY OF SOUTH BEND.
• Court: Indiana Supreme Court

48 N.E.2d 649

221 Ind. 538

WILMONT v. CITY OF SOUTH BEND.

No. 27853.

Supreme Court of Indiana

May 18, 1943

Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

Theodore G. Wood and Leo J. Lamberson, both of South Bend, for appellant.

Nathan Levy and Joseph A. Roper, both of South Bend, for appellee.

SHAKE Judge.

This is an appeal from a judgment rendered against the appellant upon his refusal to plead over after a demurrer to his complaint had been sustained. It was alleged in the complaint that the appellant was for a long time a policeman of the City of South Bend; that on August 19, 1939, he became ill with hay fever and asthma, whereupon he reported his condition to the appellee and requested that he be provided with medical attention and granted sick leave; that he went, next day, to Minnesota where he remained until September 19; and that upon his return he was informed by the Chief of Police that charges had been filed against him before the Board of Public Safety for absence from duty without leave and that the hearing had been set for September 25. It was further alleged that on September 25 the appellant was wrongfully and unlawfully discharged without just cause by the Board, over his objection, 'to make room for quasi political preferred friends.' The complaint sought damages for breach of the contract of employment. It was not alleged that the appellant demanded a hearing before the Board of Public Safety or that he sought to have the order of discharge reviewed by a court.

The appellant's tenure rights are controlled by § 48-6105 Burns' 1933 (Supp.), § 11478, Baldwin's 1935 Supp. Said act provides, among other things, that a member of a police force may be removed by the Board of Public Safety for absence without leave, but that a hearing shall be had on the charges, if demanded. One so dismissed may 'appeal' from an order of discharge to the circuit court within 30 days. 'The decision appealed from shall not be stayed or affected pending the final determination of such appeal, but shall remain in full force and effect until and unless modified or reversed by the final judgment of the court.'

The contentions of the appellant are: (1) that the statute above referred to is unconstitutional because it undertakes to deny an appeal to this court from final judgments of circuit or superior courts entered in review of orders of boards of public safety, and because it impairs the obligation of contracts; and (2) that the appellant had the right to elect whether he would pursue the statutory remedy or bring a common law action for breach of his contract of employment.

To maintain the proper balance between the departments of government, the courts have power to confine administrative agencies to their lawful jurisdictions. The act before us will not be construed as depriving the appellant of a judicial review of the order of discharge or as denying him the right of an ultimate appeal to this court. This subject was fully considered in Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399. The statute is not open to the first objection urged against it.

There is no element of the impairment of a contract here involved. Whatever rights the appellant possessed were by virtue of the statute, which he now attacks. If the statute is void he was merely the employee of the city at sufferance and subject to discharge at will. City of Frankfort v. Easterly, 1943, Ind.Sup., 46 N.E.2d 817, 47 N.E. 319. The appellant may not claim the benefits of this statute and, at the same time, challenge its validity on the ground that it impairs his contract rights. Swing v. Kokomo Steel & Wire Co., 1924, 75 Ind.App. 124, 125 N.E. 471.

The appellant says that in 1923 when he became a member of Sough Bend police force the statute then in force (Acts 1905, ch 129, § 160, p. 339) permitted him to bring an action for breach of his contract of employment without bond within six (6) years. He reasons that the present statute impairs the obligation of his contract by limiting the time for bringing an action to review an order...