155 N.E. 198 | Ind. | 1927
The relators, each of whom are members of the regularly organized and paid fire force of the city of New Albany, appellants here, on June 19, 1925, commenced this action in mandate in the Floyd Circuit Court against the appellees, the mayor of the city of New Albany, two members of the board of safety, and members of the common council of that city, for an order *81 compelling such city officers to comply with the alleged provisions of ch. 57, Acts 1920 (Spec. Sess.) p. 196, § 10878 Burns 1926.
Separate demurrers to the complaint for want of facts filed by the mayor, the members collectively of the board of safety and the members collectively composing the common council, were sustained and each of these rulings is separately assigned as errors.
The complaint shows that the city of New Albany, according to the last preceding census of the United States, has a population of more than 15,000; that it has a regularly organized and paid fire force; that on January 1, 1921, and continuously since that time, the mayor, board of safety and common council of the city of New Albany have failed and refused to divide the fire department into two bodies or platoons, one to perform day service and one to perform night service, and as a result of such refusal, relators, ever since January 1, 1921, and now, are performing double duty and work without additional compensation; that the common council refuse to make an appropriation sufficient to pay firemen necessary to a fire department of two platoons, and that relators are without an adequate legal remedy.
The statute, supra, here in question, reads as follows: "That the fire department or fire force in every city or town with a population exceeding fifteen thousand (15,000) according to the last preceding census of the United States, and having a regularly organized paid fire department or fire force, shall be divided into two bodies or platoons, one to perform day service and one to perform night service. In cases of emergency, the chief of the fire force, or the assistant chief or the chief officer in charge at any fire, shall have power to assign all members of the fire force to continuous duty, or to continue any member thereof on duty, as may be necessary. *82 No member of either of said platoons shall be required to perform continuous duty for a longer consecutive period than 24 hours; excepting as may be necessary to equalize the hours of duty and service and also except when necessary as above provided.
"This act shall take effect the first day of January, 1921."
In the first place, this statute is awkwardly worded, but since we may disregard grammatical construction when, from the language used, the legislative intention is explicit (State v. 1, 2. Myers [1896],
The theory of the complaint is that appellees, as city officers, by the above statute, were charged with a mandatory and imperative ministerial duty, that is to say, the law having expressly commanded a specific thing to be done involving administrative action, in this case imposed upon appellees alone, they thereby were charged with the performance of an undiscretionary duty.
The memorandum designed by the statute (§ 362, cl. 6, Burns 1926) does not contemplate, as a part thereof, argument and general observations of counsel. Its purpose is to point 3. out clearly and concisely the facts wanting in the pleading to make it sufficient on the theory upon which it is predicated. State, ex rel., v. Bartholomew (1911),
By eliminating the redundant matter in the memorandum before us, the defects in the complaint relied on are, want of facts showing: (1) Interest or special damage entitling relators to invoke the statute; (2) a joint cause of action in their favor; (3) statute mandatory and not directory; and (4) it affirmatively appears that the statute on which relators rely is unconstitutional and void.
It appears that relators were all employed in one common cause and performing like service in compliance with the requirement of a regularly organized paid fire department of a city having 4. a population within the classification of cities over which the legislative enactment in question was made to apply. They had the same special and peculiar interest in the enforcement of the statute which purposed to lessen the hours of continuous duty of each and all of them. The refusal of the city officers to do their duty under the statute in question is the act of which they all complain. This showing of a common interest in the final determination of the real question at issue was sufficient to repel the first two objections made to the complaint. Shira v. State, ex rel. (1918),
According to the last United States census, we judicially know (City of Huntington v. Cast [1898],
It is the duty of the mayor to preside at all meetings of the common council, and, in case of a tie, cast the deciding vote. Acts 1905 p. 244, § 49, § 49, § 10280 Burns 1926. He is given veto power as to all ordinances, orders or resolutions for the appropriation of money for any purpose. In case of a veto, two-thirds vote of all the council members-elect is required to again pass such ordinance, order or resolution. § 10283, supra.
While the question has not been raised or presented, it will not be improper to suggest that it thus appears that the mayor, common council and board of safety, appellees here, and 6, 7. all by the complaint shown to have refused to comply with the alleged mandate of the statute, may severally be important factors in delaying, if not defeating, the alleged purpose of the statute, and for that reason, and that full relief may be granted in a single action, it was not improper to join them as defendants. Gruber, Trustee, v. State, ex rel.
(1925),
However, appellees contend that the statute in question is directory and not mandatory. This contention is based upon the thought that the statute is remedial and its application is left to official discretion. They say that the complaint brings the city of New Albany within the letter of the statute, but not within the reason of it, and hence. "cases not within the reason, though within the letter, shall not be taken to be within *85
the statute." Citing, Traudt v. Hagerman (1901),
Let it be said that the statute is remedial, but that fact alone is no legal reason, not even an excuse, for disregarding it. It is a property safety measure, in which the public 8. generally has an interest, and, as we have seen, appellees collectively constitute the regularly organized machinery by which its provisions are made effective. Its language is imperative in form and even if it be regarded as remedial and be liberally construed, such construction only extends to effectuate the legislative intention to advance a remedy, which, if applied in the instant case, would be possibly in the interest of the public and to suppress the mischief of continuous service on the part of the personnel of the city's fire department.
To construe a statute liberally is but to express the legislative intention to be drawn from the chief purpose of the law, its context, its subject-matter and the consequences which would result from construing it one way or the other, and nothing more.
As we read the instant statute in connection with relative rules for its construction, we are persuaded to *86 conclude that it was not the intention of the legislature 9. to supply some defect in the law, or give a new remedy alone, but to go farther and charge cities having a population exceeding 15,000 with a positive public duty. This conclusion places the present case within the class to which the rule announced in the Traudt case, supra, does not apply. The provisions of the statute at bar are mandatory.
Lastly, it is said that the statute is inhibited by our state Constitution. The city of New Albany is a political subdivision of the state. Its governmental and administrative power is 10. by virtue of legislative authority. Within its territorial jurisdiction, it is an agent of the state, and except as specially restrained by constitutional restrictions, it is within the continuous exclusive control of the legislature. Nevertheless, appellees say that the management of New Albany's fire department is a prerogative of local self-government and beyond the power of legislative interference. If we get the point to their argument in this respect, they justify their action of refusal upon the theory of "reserved power of the people." InWright v. House (1919),
There is no pretext for saying that the statute under consideration applies to any act or thing done before the *87
passage of the law, nor has it been made to appear that 11-14. any contract would be impaired by it, other than to assert that there is a contractual relation existing between the members of the fire department and the city, which the present statute abrogates. The rule is well settled that a party who seeks to have a statute declared unconstitutional "must affirmatively establish that the same impairs his rights and is prejudicial thereto." Currier v. Elliott (1895),
Appellees are not protected in the position they have *88
taken toward the instant statute by the constitutional provision upon which they rely. On the question of local 15. self-government, we are advised of exceptional cases where legislation has been stricken down upon what is sometimes called the "reserved power of the people." Such cases are not made to rest upon any express written prohibition in the Constitution, but upon restraints of legislative power to be drawn from the inhibitory words and the language employed, considered and construed as of the time and under the circumstances surrounding the framers of the organic law. That reasoning was adopted by this court in State, ex rel., v.Denny, Mayor (1889),
We do not regard the underlying principle of local self-government as controlling the decision of the present case. The act before us is, in its nature, a police regulation. 16. It has to do with working conditions alone — health and welfare of society. It applies alike throughout the state to all persons similarly situated, and is of general application to all towns, cities and persons of the same class. Appellees, by virtue of their respective official positions, are charged with certain statutory duties in the management and promulgation of laws pertaining to the corporate affairs and business welfare of the city. They are, therefore, within the purview of the statute at bar. While they represent the city of New Albany, they are nevertheless, to a limited *89 extent, agents of the state for the purpose of administering all reasonable laws of a regulative character, as here shown, and not forbidden by the State or Federal Constitutions, and the laws and treaties passed and made pursuant thereto. The present law merely fixes a duty upon statutory classified cities, and the performance of that duty is left to the local officers of each city. The state does not assume to take from the city of New Albany the management of its city fire department, or restrict its right of possession or control of its fire apparatus or dictate the quantity, quality or character of its fire fighting tools and instruments, or whom it shall or shall not employ as firemen; nor does it assume to tell the city of New Albany that it shall maintain a fire department at all. It does, however, make it imperative on towns and cities in this state that maintain a regularly organized paid fire department, twenty-one in number in 1920, with an aggregate population of 1,055,643, to adopt the platoon system. The act in question is constitutional.
Judgment reversed, with instructions to overrule each of the demurrers to the complaint.
