City of Frankfort v. Easterly

The appellee sued the City of Frankfort for loss of salary resulting from his alleged wrongful discharge as a policeman. The trial court made a special finding of facts, stated conclusions of law favorable to the appellee, and rendered judgment against the appellant for $3,000. Errors are assigned on the overruling of a demurrer to the complaint for want of facts, exceptions to the conclusions of law, and the overruling of a motion for a new trial. By the motion for a new trial the appellant asserted that the decision was not sustained by sufficient evidence; that it was contrary to law; and that there was error in the admission of certain evidence.

Any error in overruling the demurrer to the complaint was harmless since correct conclusions of law on the facts found would reach the same legal result as a correct ruling on 1. the demurrer. See Swarthout v. McDonald Mortgage and Realty Co. (1936), 102 Ind. App. 298, 199 N.E. 467, and cases there cited.

The appellant's first and major contention is that its police department was subject to the Metropolitan Police Board Act (Acts 1897, ch. 59, § 1, p. 90; Acts 1901, ch. 18, § 1, p. 24; Acts 1909, ch. 56, § 1, p. 151; § 48-6301, Burns' 1933; § 11495, Baldwin's 1934), rather than the Public Works Act (Acts 1905, ch. 129, § 160, p. 219; Acts 1933, ch. 86, § 1, p. 577; § 48-6105, Burns' 1933; § 11478, Baldwin's 1934); that the city never complied with the first mentioned act by establishing a metropolitan police board; and that, as a consequence, the appellee was merely a contract employee subject to discharge at will and without a hearing.

The acts referred to constitute the only statutory authority under which the City of Frankfort may employ or remove policemen. It is unnecessary to determine which act is applicable since they are substantially alike, insofar as they relate to tenure rights and grounds and procedure for removal. The Metropolitan Police Board Act provides that all persons appointed to a police force thereunder shall serve during good behavior, but may be removed by the commissioners for cause assigned, on a public hearing, on notice. § 48-6302, Burns' 1933, § 11509, Baldwin's 1934. The Public Works Act, in force at the time of appellee's alleged discharge, likewise provided that members of a police force appointed thereunder should hold office until removed for cause, after notice and a hearing, if demanded. § 48-6105, Burns' 1933, § 11478, Baldwin's 1934.

The parties stipulated and the trial court found that the appellee served as a member of the police force of the City of Frankfort, from October 14, 1929, until December 31, 1934. 2. He claims that he was wrongfully discharged on the last mentioned date. Prior to his alleged discharge the appellee had, therefore, acquired tenure rights, under whichever statute was applicable, and the city could not convert his employment into one at sufferance by its failure to set up the appropriate administrative agency. If the city was subject to the Metropolitan Police Board Act, as it claims, and it had no such board, the appellee was protected against discharge until a board with authority to discharge him was duly constituted. The appellee's rights could not be thwarted by the city's dereliction of duty.

The trial court also found that on December 31, 1934, the acting chief of police advised the appellee that he had been discharged, and that on January 1, 1935, another person was appointed to serve in his place and stead by the Board of Public Works and Safety. No charges for the removal of the appellee were ever preferred and no record of his dismissal entered by any board assuming to act for or on behalf of the city.

This case is the same in all material respects as City ofEvansville v. Maddox (1940), 217 Ind. 39, 25 N.E.2d 321. In that case a policewoman who had acquired tenure rights was discharged by the chief of police, although no charges had been filed against her and no order for her dismissal was entered by the board. This court held that the subsequent appointment of another person to the same position by the board constituted a recognition and approval of the action of the chief of police. A judgment in damages for breach of contract was sustained.

One paragraph of the appellant's answer charged that the appellee ceased to perform services for the city in January, 1930; that he did not commence his suit until March 24, 3-5. 1937; and that his action was therefore barred by laches. It is undisputed that the appellee served as a policeman until January 1, 1935. There was also evidence that the chief of police advised the appellee that he need not report back for work as another man had been employed in his place, and that if he did not surrender his equipment the same would be replevied. Another policeman who was discharged at the same time and under the same circumstances reported for work each day for fifteen (15) days to no avail. The obligation was on the appellant to establish its answer, and the failure of the trial court to find that the burden had been sustained amounted to an adverse determination of that issue. We cannot say that this was contrary to law. The defense of laches is peculiar to courts of equity and is not applicable to an action at law. In point of time, the only bar to the appellee's action was the statute of limitations. 30 C.J.S., Equity, § 113.

What we have said is an answer to all the propositions presented by the appellant's brief.

The judgment is affirmed.

NOTE. — Reported in 46 N.E.2d 817.