State ex rel. Bunn v. Fisher, No. 19,649

No. 19,649 | Ind. | Nov 19, 1901

Dowling, J.

Petition by tbe relator for a writ of mandate to compel tbe mayor and common council of tbe city of Mishawaka, Indiana, to- prefer charges against him as a policeman, give him notice of such charges, grant him a bearing, and allow him to defend before they remove him from tbe position of a policeman of said city.

It is alleged in the petition and writ that tbe relator is a policeman of the city of Mishawaka, duly appointed by the common council of said city; that he has qualified and given bond; and that on the 4th day of March, 1901, the appellees removed him from office by a majority vote, but by less than a two-thirds vote of the common council, without charges being preferred or a hearing of the same. An alternative writ was issued and served, and a demurrer to the petition and writ was sustained. The relator refusing to amend his petition, judgment was rendered on the demurrer. The lulling upon the demurrer is assigned for error.

The complaint and writ must be held insufficient. They fail to show when the relator was appointed, for what term or length of time, upon what conditions, or that any demand for a trial or other redress was made. The petition asks that the common council be required to prefer charges against the relator. Certainly, that body cannot be compelled to do this. There may be no grounds for charges. Again, the relator has already been removed. He does not ask to be reinstated, or to have the proceedings for his removal set aside. Eor all that appears, he may have consented to the action of the common council.

The general rule in proceedings of this character is thus stated: “The petition for a writ of mandamus should present to the court a prima facie case of duty on the part of the defendant to perform the act demanded, and an obligation to perform it; otherwise, the alternative writ will not be granted. It should also appear from the petition that a demand has been made on the defendant to do the thing he is sought to be compelled to do, and that he has refused or neglected to do it. (Stephens’ Nisi Prius, 2318, 2319; People v. Walker, 9 Mich. 328" court="Mich." date_filed="1861-11-06" href="https://app.midpage.ai/document/people-ex-rel-bishop-v-walker-6632540?utm_source=webapp" opinion_id="6632540">9 Mich. 328.) And the facts and circumstances under which the petitioner claims the relief prayed should be stated fully, clearly and unreservedly, and not inferemtially. (Commonwealth v. Commissioners, 37 Pa. St. 277)”. Moses on Mandamus, 204.

The complaint and writ in this case comply with none of these requirements. Judgment affirmed.