199 N.E. 151 | Ind. | 1936
The relator, appellee herein, filed this action to mandate the respondents, appellants, demanding that he be restored to his position as a fireman in the Fire Department of the city of Peru, a city of the fourth class, from which position he alleged that he had been unlawfully removed for political reasons, and without a hearing as provided by section 48-6105, Burns' Ann. St. 1933, § 11478, Baldwin's 1934; that relator possessed all the statutory qualifications and duly performed the services required of him. He alleged that he was discharged January 16, 1930, and since that date had not received his salary of $120 per month. He demanded that respondents be mandated to pay said salary to date of trial. He further asked that respondents be enjoined "from appointing or electing any other person to occupy said office in his place and in his stead and from paying to any other person the salary or emoluments thereof."
The issues were formed by affirmative paragraphs of answer to which a reply in denial was filed.
Among the answers filed was one admitting relator's discharge from his position on the fire force of said city, and alleging that upon his discharge, another was duly appointed and qualified in his place, and thereafter continued to act in said capacity and received the salary *670 thereof; that the relator's discharge was not for political reasons, but that he was discharged after a hearing was accorded him as provided by law.
The cause was submitted to the court for trial, which resulted in a finding and judgment for relator as follows: (1) The respondents were mandated to set aside their order discharging relator, and that he be recognized and re-established in office as a member of the fire force of said city, and (2) that respondents be, and they were, mandated to pay to relator his salary of $120 per month from January 16, 1930, to date of judgment in the total sum of $4,912.
The necessary proceedings were had to perfect an appeal to this court.
Under the statute, the common council of a city of the fourth class constitutes the board of public safety. The section of the statute above referred to provides that the members of the fire force, appointed by the board of public safety, shall hold their office until removed. Provisions are prescribed as to the hearing and manner of removal. The details of the statute need not be set out herein.
Upon the trial in the lower court, evidence was heard as to the relator's appointment and as to the method and manner of his removal. This question was one of fact submitted to the 1, 2. trial court, the result of which was a finding and judgment in favor of relator. Upon such question of fact, this court is without authority to weigh the evidence, but is bound by the judgment of the lower court. The evidence is such that the trial court was justified in deciding that the relator was not accorded a hearing as prescribed by the above statute, and that he was entitled to be restored to his position as a member of the fire force of said city. A proceeding in mandamus for that purpose is recognized in Roth v. State ex rel.
(1902),
The second proposition — the mandate requiring the respondents to pay the salary of $120 per month to the relator from January 16, 1930 — presents a different question. The record affirmatively shows that during all of the time relator was discharged, that is from January 16, 1930, to the date of the judgment, another had been appointed in the place of relator and received the salary. This question was before the Supreme Court in State ex rel. v. Hulley, Mayor (1922),
The question arises as to whether the relator was an officer of said city or merely an employee thereof. If he *672
was an officer with a fixed salary, a mandate would lie 3-5. to compel an administrative officer to pay the salary, but if he was merely an employee of the city, it is clear that his remedy would be an action against the city for a breach of his contract of employment, and the measure of his damages for his wrongful discharge would be the amount the salary due to him from the city exceeded his earnings and income in other occupations or employment during the time of his wrongful discharge. State ex rel. v. Hulley, Mayor, supra. The decisions of this court hold that the relator was merely an employee of the city and not an officer. Klink v. State exrel. (1935),
The relator tried his case in the lower court and has briefed and argued it in this court upon the theory that he was a public officer and that his rights were those of an officer 6. wrongfully excluded from office. If this court were to accept relator's theory, he would then be in no better position because the rule is firmly settled in this state that where a de facto officer of a municipal corporation has received from the disbursing officers, in regular course, the salary attached to the office held by him for the time he occupied the same and performed the duties thereof, the municipality is not thereafter liable to the de jure officer for such salary, though he may obtain possession of the office and show that he has been kept out of it by the wrongful acts of the other officers of the municipality. Leonard v. City ofTerre Haute (1911),
The soundness of the rule above announced cannot be questioned when it is remembered that the disbursing officers of a municipality are not clothed with judicial power to determine whether or not a person vested with the indicia of an office or a position, and performing the duties thereof, is, in fact, a dejure officer, where there has been no judicial determination of such fact. The exigency of society requires efficient performance of official duties, and to secure such performance, prompt payment therefor is an essential requisite. If public authorities were required to withhold the pay of an incumbent or public officer until a judicial determination could be had, or to pay the same at the peril of being compelled to pay it the second time, it would have a tendency to impair the efficiency of public services, and would be against public policy.
Since the relator is declared by judicial determination in this state to be an employee merely, it is clear that he cannot maintain an action to mandate the municipality to pay to 4. him the salary of the position during the time he was ousted, and when the salary was being paid to another. Mandate does not lie in such case.
As above stated, his remedy was an action against the city for breach of contract of employment. Therefore, this cause is affirmed as to the mandate of the lower court in installing 5. the relator to a position in the fire department in the city of Peru, and it is reversed as to the mandate awarding to him the sum of $4,912 as a salary.
Treanor, J., concurs in that part of decision which holds that relator was entitled to be reinstated in his position. *674