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Roth v. State, ex rel.

lators on said day, and previous thereto, were policemen of that city, having been appointed by the board of public safety as members of the regular police force, and were discharging the duties of patrolmen. On said day appellants, as members of said board, by an order entered on the records of their office, assumed to dismiss relators from the police force without granting them any trial or hearing in respect to the cause of their removal. After the order of removal had been entered, they were notified that they had been dismissed, and were directed to turn over all of the property in their possession belonging to the city to the captain of police. Thereafter they instituted this action to obtain a writ of mandate against appellants, as such board of public safety, to restore them to the positions which they held at the time of the alleged removal. An alternative writ was duly issued, which required appellants to restore the relators to their former places, or, in the event of their refusal to comply with the court's mandate, they appear at the time fixed and show cause in justification of such refusal. At the time designated in the writ, appellants appeared and made return thereto, in which they recited or alleged that: “The board had investigated the standing and conduct of each of the relators, with the view of ascertaining their efficiency and fitness as such officers, and, as a result of such investigation, satisfied themselves and found the facts to be, that, all of said relators were inefficient officers, and that, to maintain the efficiency of the police force of said city, it was necessary that they, and each of them, be removed therefrom.” The return then proceeds to charge that these relators treated their superior officers, and the orders given by the latter, with contempt; that they were guilty of general insubordination; that some of them were drunkards, and that others associated with lewd women and were patrons of houses of ill fame. After making these charges the return continues as follows: “That after discovering all said facts, and being satisfied of the truth of the same, the

Roth v. State, ex rel.

said board, and these defendants, members thereof, believed that to allow said relators to remain members of said police force would result in the utter demoralization thereof, and that public trials of so many members of said force would result in great harm to the efficiency of said police force. That, so believing, and having in mind only the betterment of the service in the said department, they, acting as such board, made and caused to be entered upon the records of said board the following order for the removal of all said relators from the said police force, with the written reasons for such removal embodied therein, as follows, to wit: The board, after investigation as to the standing and capacity of the following members of the police force, finds them to be inefficient officers, and, for the betterment of the service, hereby orders their discharge, such discharge to take effect December 15, 1899: Jacob D. Kurtz, Daniel A. Butcher, Harry C. Barbee, Asbury D. Rinker, Ira Leet, Elmer Stoddard, Frederic Gunsaulus, Terence Moore, William L. Cox, Thomas L. Stout, and John F. Kurtz. That in making such order of removal the said board did not in any wise consider the politics of said relators, or any of them, and that neither of such relators was so removed for political reasons; nor was said board, or any member thereof, in any wise moved or influenced in such action of removal by any political considerations."

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

Roth v. State, ex rel.

of these policemen. Or, in other words, may this board, under the provisions of the statute by which the city of Indianapolis is governed, legally remove patrolmen belonging to the police force thereof by merely entering of record the reasons or grounds of such removal, without any charges having been preferred against the accused by the board, or any member thereof, or by any other person of said city, and without giving any notice to the accused party or parties, and without granting unto them an opportunity to be heard in their own defense ? To determine this question, it is necessary to examine and fully consider the provisions of the charter law under which the city of Indianapolis operates, and controls its municipal affairs.

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,

Roth v. State, ex rel.

The statute commonly known as the “Charter law of the City of Indianapolis,” entitled "An act concerning the incorporation and government of cities having more than 100,000 population, etc.,” has been in force since 1891. Acts 1891, p. 137, $3772 et seq. Burns 1901. Section 48 of this statute, being $3819 Burns 1901, provides: “The following executive departments are hereby established in such city: (a) Department of finance, (b) Department of law, (c) Department of public works, (d) Department of public safety, (e) Department of assessment and collection, (f) Department of public health and charities. No other executive or administrative departments shall be established in such city.

Each department shall have power to prescribe rules and regulations not inconsistent with any statute or ordinance, or regulation established pursuant to $45 of this act, for its own government, regulating the conduct of its officers, clerks, and employes, the distribution and performance of its business, and preservation of books, records, paper, and property under its control.

The officer or officers at the head of any department may appoint and remove any of his or their clerks and assistants, subject to any regulations adopted pursuant to $45 of this act,

; Provided, 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 any 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.”

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

Roth v. State, ex rel.

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essary for such department of public safety. Said commissioners of public safety may also fix the number of members of said fire and police forces, and the number of appointees for other purposes vided, That said forces shall be as nearly as possible equally divided politically, and no member thereof shall be dismissed except for cause as hereinbefore provided.” An examination of the provisions of the statute in question, discloses that the word "hereinbefore", as used in the preceding section, is a clerical error; and in construing the statute the word should be read “hereinafter", as was evidently intended.

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

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