158 Ind. 242 | Ind. | 1902
Appellants, Charles C. Roth, Nelson J. Hyde, and Wilson C. McMillen, on and prior to December 15, 1899, and subsequent thereto, were the members of the board of public safety of the city of Indianapolis. Re
On demurrer the court held the return to the alternative writ insufficient, and, appellants refusing either to' amend or make a further return, judgment was rendered by which a peremptory writ of mandate in favor of the relators was awarded. A reversal of this judgment is sought on the ground that the lower court erred in sustaining the demurrer to the return of the alternative writ. The question presented for our determination is whether the power of removing these relators, which is vested by law in the board of public safety of said city, has been legally exercised, under the procedure adopted by appellants in the removal
Counsel for appellees contend that patrolmen of the police force of said city are appointed to serve upon the police force during good behavior, and that they can not be legally removed, except for cause or causes, on charges preferred, after being given an opportunity to be heard in their defense in respect to the accusation preferred against them.
On the other hand, counsel for appellants contend: First, that no such interpretation can reasonably be given to the provisions of the city charter; second, that, if such a construction prevails in respect to the statute in question, it will result in bringing it into conflict with §2 of article 15 of the State Constitution, which is as follows: “When the duration of any office is not provided for by this Constitution, it may be declared by law; and if not so declared, such office shall be held during the pleasure of the authority making the appointment. But the General Assembly shall not create any office the tenure of which shall be longer than four years.”
We will first consider the construction of the statute in dispute, and next, in the event it becomes necessary, the application thereto of the above provision of our Constitution.
Section 95 of the charter," §3866 Burns 1901, provides: “Said commissioners shall appoint a superintendent of police, chief of the fire force, and all other officers, members and employes of said fire and police forces, together with a market-master, station-house keeper, and other officials nec
Section 96, §3867 Burns 1901, provides: “Every member of the fire and police force, and all other appointees of the commissioners of public safety, shall hold office until they are removed by the board. They may be removed for any cause other than politics, and the written reasons for such removal shall be entered upon the records of such board.”
The next, §97, §3668 Burns 1901, as originally enacted, including the addition made by the amendment of 1899, reads as follows: “On conviction of a member of the said fire or police force for any criminal offense or neglect of duty, or of violation of rules, or neglect or disobedience of orders, or incapacity, or absence without leave, or conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer, or other breach of discipline, said commissioners shall have power to punish the offending party by reprimand, forfeiture, suspension without pay, dismissal, or by reducing him to a lower grade, and pay. Upon any investigation of the conduct of any member of the fire or police force, or upon the trial of any charge preferred against any member thereof, said board of commissioners shall have power to compel the attendance of witnesses, and the production of books, papers and other evidence, at any meeting of such board, and for that pur
Section 100, §3871 Burns 1901, authorizes the board of public safety to appoint special policemen and firemen to perform special duty or services, and it is provided in that section that “Such persons so appointed may be removed at any time by said commissioners without notice and without assigning any cause.” (Our italics.)
It also appears that, under §107, §3878 Burns 1901, of the charter involved, the commissioners of the board of public safety are authorized to create a police insurance fund, by retaining a per cent, of each policeman’s salary; and by an act of the legislature in force February 24, 1899, provisions are made for creating a police-pension fund. We simply mention these provisions of the law, as. they may possibly be helpful in solving the point in respect to the proper interpretation that should be accorded to the parts of the statute herein involved.
Passing to the further consideration of the question presented, it may be asserted that an examination of the statute in controversy reveals the fact that one of its principal purposes was to make business capacity, instead of political activity or party fealty, an essential qualification for the city’s public service. While under the requirements of §95, §3866 Burns 1901, the members of the fire and police forces are required to be, as nearly as possible, equally divided politically, still, when they are once appointed, they can not be legally removed or dismissed solely on account of their political opinions.
Section 105, §3876 Burns 1901, declares that: “It shall be unlawful for said commissioners of public safety, or any persons appointed by them or their predecessors, or holding any position on said fire or police force, to solicit any person to vote at any election for any candidate, or to challenge any voter, or in any manner attempt to influence any elector
These provisions, and others of the law, fully demonstrate that the legislature intended thereby to prevent the police and fire forces of a large city, like Indianapolis, from being used as a “political machine” by a party in power to further its interest in carrying elections, and that .the evil or mischief which may be said to have formerly existed, of allowing a general dismissal of efficient policemen and firemen at each and every change in the administration of the affairs of the city, without regard to the merits or demerits of the persons so removed, should no longer be permitted. The fact that the statute so positively discloses that it was the intention of the legislature absolutely to bar out politics as a cause or ground for removal may, in reason, be said to lead to the inference that the legislature certainly intended to leave no way open by which the members of the board of public safety might, if they so designed, secure indirectly what they were forbidden to do directly, that is to say, by removing in an ex parte method police officers for political reasons, and thereby disguise the true cause of their action by assigning on their records, in justification thereof, a cause or ground quite different from the one which prompted the removal, without any person being permitted h> appear to dispute or deny the cause or causes so assigned. It must be presumed, in the absence of some provision in the statute, that the legislature did not intend to leave what may be termed a “loophole” by which the positive prohibition of the law might be evaded, without any one being permitted to expose such evasion. In making these suggestions, however, we are not to be understood as imputing, or.
It is properly conceded by counsel for appellees that,, if the relators in this case held their positions or offices at the pleasure of the board of public safety, then, under such circumstances, they might be removed without the preferment of any charge or charges, and without notice given or trial had. It is evident from a reading of the charter in dispute that the legislature, in the enactment thereof, was not unmindful of the fact that there were certain classes of appointees that, by reason of the confidential character of the relation sustained by them to the appointing authority, the good of the public service required should hold only during the pleasure of those vested, under the law, with the power of making such appointments; and, when the legislature was dealing with or referring to this class of appointees, it seems to have used apt language in expressing its will in respect to such appointees. For instance, in §3819 Burns 1901, in defining the duties of heads of departments, it is declared that “Each of said departments shall have power to designate and appoint, and at pleasure remove a person in such department as deputy or first assistant.” Again the same section provides “That after the expiration of thirty days from the time when a new officer or officers shall have been appointed to the head of a department, he or they may remove clerks or assistants only upon filing in writing with the city clerk the reasons for such removal, except that foremen, inspectors and laborers temporarily employed under the department of public works may be removed at any time at the pleasure of the department.” (Our italics.)
It will be observed by examining §3871 Burns 1901, by which provisions are made for the appointment of special policemen and firemen, that the legislature was careful to
Counsel for appellants contend, however, that §3867 Burns 1901 invests the board of public safety with plenary power to remove any member of the police or fire force for any cause other-than politics, and that the only restriction or limitation which the law places upon such power is the requirement in said section that the reasons for such removal shall be entered on the records of the board. The insistence advanced is that under this section the board, on its own motion, for any cause other than politics, may remove any member of the police force without giving him an opportunity to be heard in his defense, and that any other interpretation of this section would render it meaningless. It is asserted that the statute recognizes two distinct procedures for removal, the first being what counsel denominate “an independent investigation” in respect to any and all of the board’s appointees. Such an investigation it is asserted is contemplated by §3867 Burns 1901. Second, an investigation, under §3868 Burns 1901, upon charges preferred against the policemen or firemen only. We are not impressed with these contentions in respect to the interpretation for which counsel contend. The claim made that §3867, supra, must be so construed as to authorize the removal of policemen by an ex parte proceeding, by simply entering the reasons for his removal on the records of the board, without giving him an opportunity to be heard in his own defense, is certainly untenable; and it is not in
The statute declares in general terms that the removal must be for cause, and this, as the authorities affirm, necessarily and reasonably implies that the cause intended is to be some dereliction or general neglect of duty, or some delinquency affecting the general character of the officer, or his fitness for holding the office, or his incapacity to discharge the duties thereof. Mechem on Public Officers, §457; People v. Fire Commissioners, 72 N. Y. 445; People v. Fire Commissioners, 73 N. Y. 437.
On no reasonable view of the question can it be asserted, that the provisions of §3867 Bums 1901, which require, in every case of removal, that the written reasons therefor shall be entered upon the records of the board, serve only as a limitation upon the arbitrary right of the board to remove a member of the police force in an ex parte proceeding. It would certainly be unreasonable to assume, in the absence of some declaration in the statute to the contrary, that the legislature intended to authorize the board to con
Counsel for appellants concede that under the provisions of §97, §3868 Burns 1901, a hearing or trial of an accused policeman or fireman is contemplated. It would seem to be inconsistent with reason that the legislature should require the board, under the latter section, before proceeding to punish a policeman by suspending him without pay, or by reducing him to a lower grade, etc., to give notice to the accused officer, and award him an opportunity to be heard in his defense, while under §3867 Burns 1901 it was intended that the board might summarily remove him, and thereby wholly deprive him of his office, without giving him any hearing whatever.
In Bennet v. Ward, 3 Caines 259b, a statute was under construction which seemed in one part to provide for a summary proceeding, and by another part for the ordinary and usual procedure. The court in that case said: “Where a statute admits of two constructions, it is advisable to give it that which is consonant to the ordinary mode of proceeding,” and further held that any construction of a statute which would result in authorizing a summary proceeding ought not to be adopted unless the law is positive and unequivocal in that respect. This is certainly a proper and
A review in detail of these authorities would unnecessarily extend this opinion. An examination thereof, however, will disclose that they uniformly support the doctrine affirmed, and the conclusion at which we arrive in regard to the construction of the provisions of the statute in dispute. Quotations from the following will suffice: Dillon, in his work on Municipal Corporations, §250, says: “Inhere an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. But where the appointment is during good behavior, or where the removal can only be for certain specified causes, the power of removal cannot, as will presently be shown, be exercised, unless there be a formulated charge against the officer, notice to him of the accusation, and a hearing of the evidence in support of the charge, and an opportunity given to the party of making defense.”
In §253 of the same work, it is said: “Respecting the proceedings to amove, it has already been observed that they must be had by and before the authorized body duly assembled, in conformity with the rules on that subject, which are elsewhere stated. The proceeding in all cases where the amotion is for cause is adversary or judicial m
Beach on Public Corp., §193, asserts the rule as follows: “Before an officer whose tenure of office is not discretionary-can be removed, he is entitled to a personal notice of the proceeding against him, which notice must contain the fact that a proceeding to amove is intended and the time when and place where the trial body will meet. The charges must be specifically stated, with substantial certainty, and the accused must be given time to produce his testimony and present his answer, and is entitled to' be represented by counsel and to cross-examine the witnesses against him.”
In State, ex rel., v. City of St. Louis, 90 Mo. 19, the question arose over the removal of a police justice of the city of St. Louis. These justices were appointed by the mayor, and the city charter provided that “An appointed officer may be removed by the mayor or council for cause.” (Our italics.) The facts in that case disclose that the relator was removed by the council without notice, and without being given a hearing. It was held, under the circumstances, that the removal was illegal. The court, in the course of its opinion, said: “Where an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. Field v. Commonwealth, 32 Pa. St. 478; Ex parte Hennen, 13 Pet. 230, 10 L. Ed. 138. But where the appointment is during good behavior, or where the removal must be for cause, the power of removal can only be exercised when charges are made against the accused, and after notice, with a reasonable opportunity to be heard before the officer or body having the power to remove. Gaskin’s Case, 8 T. R. 209; Field v. Commonwealth, supra; State v. Bryce, 7 Ohio 414; Dillon on Mun. Corp. (3rd
In Field v. Commonwealth, 32 Pa. St. 478, after an extended review of authorities, the court said: “Where the appointment is only during pleasure, it is then an office ad libitum, or at pleasure. But the other rule, laid down in Baggs’ case and Dr. Gaskin’s ease, and affirmed in the case just cited, is as clearly the true one, where the appointment is either during good behavior for a limited, or unlimited period, or where the removal can only be, for certain specified causes. Upon this question, the authorities in England and in this country are clear, distinct, and emphatic, and in entire accordance with the spirit of our free institutions.” (Our italics.)
In State, ex rel., v. Common Council, 9 Wis. 229, it is held that, where inferior officers or bodies (which in that case was the common council) are granted the power to remove an officer for due cause, they are not authorized to remove at discretion, and that the words “due cause”, in the statute therein involved, operated as a limitation upon their powers of removal.
The case of Dullam v. Willson, 53 Mich. 392, is one very much in point, and in that appeal the authorities are very fully reviewed by the court. The constitution of Michigan gave the governor of that state authority “to examine into the condition and administration of any public office, and the acts of any public officer, elective or appointed, to remove from office for gross neglect of duty, or for corrupt conduct in office, or any other misfeasance or malfeasance therein, either of the following state officers, to wit: * * * or any other officer of the state, except legislative and judicial”. The constitution was silent in respect to
We have carefully examined and considered the cases' to which we have been referred by counsel for appellants, but the statute or statutes involved in each are so different from
This brings us to the second proposition advanced by appellant’s counsel, to the effect that such a construction of the statute renders it, to. an extent, in conflict with §2 of article 15 of the Constitution, previously set out. This provision of our fundamental law may, for the purposes of this case, be divided into two parts, so"as to read: First. “When the duration of any office is not provided for by this Constitution it may be declared by law; if not so declared such office shall be held during the pleasure of the authority making the appointment.” Second. “The General Assembly shall not create any office the tenure of which shall be longer than four years.” Counsel for appellants argue that the duration of the office of policemen is not provided for by the Constitution; that the tenure of the offices to which the relators had been appointed is not declared by law; hence it follows, as counsel assert, that under the Constitution they could only hold during the pleasure of the appointing power, which is the board of public safety.
It is further contended that by the latter part of §2 of article 15, the legislature, in the enactment of the charter of the city of Indianapolis, was not authorized to fix the tenure of the members of the city’s police force beyond four years, and that it could only by declaring their tenure to be for some fixed time in years, not exceeding four, deprive the board, under the Constitution, of the right or power of removing them at pleasure. The provision of §2 of the act in question, embraced in the first part thereof, is nothing more than a recognition and embodiment therein, by the
The provisions of the charter which in express terms declare that members of the police force shall not be dismissed except for cause, and that they shall hold until removed for cause other than polities, certainly declares the duration of their terms, within the meaning or intent of the first part of §2 of article 15. And as their removal is thus restricted, they can not be said to hold, within the meaning of this provision, at the mere will or pleasure of the appointing power. It is true that their terms are not fixed for a definite point of time in months or years, but the period of their holding is so declared and fixed by the law as to constitute a restriction and limitation on the power of the board to remove, within the rule recognized and asserted in the section in question.
The constitution of the state of Illinois, provides, that “an office is a public position created by the constitution or law, continuing during the pleasure of the appointing power or for a fixed time.” (Our italics.) In People v. Loeffler, 175 Ill. 585, 51 N. E. 785, this particular provision was under consideration. The legislature of that state, it seems,
Counsel for appellants, in support of their contention, refer us to two cases, one of which is State, ex rel., v. Mayne, 68 Ind. 285. The only question before the court in that case was whether’ the board of directors of the state prison north had legally removed the warden thereof, who, under the law, could only be removed for cause. The ground on which the board attempted to justify its right to remove, was that the warden of the prison had refused to obey its order to dismiss the deputy warden and four of his assistants or prison guards, in order that their places might be filled by persons selected by the board of directors. The court, under the facts, held that the refusal of the warden to obey this order did not constitute a cause for his removal, for the reason that the directors had no authority to require
The other authority relied upon is People v. Hill, 7 Cal. 97. This case appears to have arisen over the removal of a captain of police of the city and county of San Francisco. The court in its opinion stated that there were but two propositions involved: “First, the authority of the appointing power to remove an officer when the term of the office is not fixed by law; second, the constitutionality of the act consolidating the city and county governments of San Francisco.” The court, in considering the first proposition,; referred to the provisions of the constitution of California, which are similar to those of §2 of article 15 of our own.
The latter part of §2, which declares that “the General Assembly shall not create any office the tenure of which shall be longer than four years,” by its express and specific language in reference to “years” may be said to contemplate and be intended to apply to offices created, the terms of which are definitely fixed by law as measured by years, one, two, three, or four. From the very character or nature of the office or position held by a policeman of a town or city, this provision of our fundamental law can not, in reason, be held to apply. It contemplates something more than the mere method of selecting or appointing policemen by a city or town under either an express grant or power given by statute, or by authority implied from a general grant to organize such municipalities. To create an office, and merely to provide for filling the same, or for regulating the duties or functions thereof, are quite different. As affirmed by the authorities, the word “create” has a clear, well settled, and well understood signification. It means to bring into existence something which does not exist. City of Indianapolis v. Navin, 151 Ind. 139, 41 L. R. A. 337. The provision in question contemplates the creation of an office which may be filled either by election or by appointment for a certain definite time, which cannot exceed
In State v. Sims, 16 S. C. 186, it is held that the power to appoint policemen is implied under the authority* granted to a city to make rules necessary to good order and public peace. The power of the legislature to provide for a police force, and the appointment of the members thereof, emanates not from the Constitution, but from the police power inherently possessed by the State. If the contentions of counsel for appellants could be sustained, the result would necessarily be to prohibit the legislature from enacting any law which would prevent municipal authorities from removing policemen at pleasure, on account of politics or otherwise, unless the law fixed or measured their terms at a definite time, not exceeding four years. Under such a law, the efficiency of the police and fire forces of our large cities, as experience demonstrates, would be greatly impaired. It follows, that the provisions of the city charter involved are, not, under the interpretation which we have placed thereon, in conflict with §2 of article 15 of the State Constitution; and the ultimate conclusion reached is that the relators, for the reasons herein stated, were illegally
It appears that appellants, since the submission of this appeal, have been succeeded in office, and the judgment below is ordered to be affirmed as of the date of submission.