Lipinski v. Town of Chesterton

280 N.E.2d 628 (1972) Thomas LIPINSKI, Appellant, v. TOWN OF CHESTERTON, Appellee. No. 170A6. Court of Appeals of Indiana, Third District. March 27, 1972. George Cohan, Sheldon H. Cohan, Gary, for appellant. William W. Andersen, Jr., Chesterton, for appellee. *629 ON PETITION FOR REHEARING SHARP, Judge. We deny rehearing but deem it necessary in this case to clarify our position and to affirmatively treat certain issues that were only impliedly covered in the previous opinion. The basic question raised by Appellee is whether the Plaintiff-Appellant was required to perfect his appeal to the circuit court as provided by I.C. 1971, XX-X-XX-X, Ind. Stat. Ann. § 48-6105 (Burns 1963). If so, then the Motion to Dismiss was the proper vehicle by which to test any procedural defects. Secondarily, there is the question of whether the trial court had absolute discretion to deny late filing of a security bond and verification. First of all, in our original opinion, Ind. App., 278 N.E.2d 302, we held that Plaintiff-Appellant's complaint stated a good cause of action and that under the old rules the motion to dismiss was not the proper method to test the sufficiency of said complaint. By so holding we impliedly held that the complaint was outside the scope of the statute and we now make said holding explicit. Appellee strongly urges that the case of State ex rel. Weaver v. Paxson, 213 Ind. 128, 11 N.E.2d 677 (1937) is applicable. That case is distinguishable in that it involved an affirmative decision by the board. The Supreme Court, at page 132, 11 N.E.2d at page 678, stated: "... the fact remains that there was a judgment rendered by the board, and the only way to obviate its effect was by an appeal to the circuit or superior court of the county as provided in said section 48-6105." But here the board did not have to render any affirmative judgment as, if the allegations of the complaint are true, it forced appellant to resign in lieu of being dismissed. I.C. 1971, XX-X-XX-X employs the following language: "Any member of such fire or police force who is dismissed from such force, as aforesaid, ... shall have the right to appeal ... from such decision of dismissal." (Our emphasis.) The statute clearly envisioned that the procedural steps outlined therein would be followed, both by the board and by any individual appealing a decision of said board. If the allegations are true, the board completely subverted, not only the procedural steps of the statute, but its underlying policy as well. The board is now attempting to argue that even if such is the case the appellant is still bound by the procedure of the statute. In regard to a similar factual situation, this court in Mills; Castor v. City of Winchester, 130 Ind. App. 397, 407, 162 N.E.2d 97, 103 (1959), stated: "It affirmatively appears from the record before us that the Board of Public Works and Safety, completely disregarding the statute under which it was acting, had a quasi star chamber session in the absence of the appellants — without notice — without having a sufficient written charge against the appellants duly entered upon its record, heard evidence and then adjudged the appellants guilty of offenses of which they had no notice or had not been charged, under the guise of reducing the membership of said Fire Department. We certainly could not, as a matter of law, condone such a practice. In a situation such as this, neither this court nor the trial court, should have been concerned as to any evidence introduced at the hearing before the Board of Public Works and Safety on January 14, 1956, which was a hearing requested by the appellants for the reason that the whole proceeding was void ab initio and necessarily contrary to law. So far as this court is concerned, the illegality can only be removed by a hearing de novo by the Board of Public Works and Safety of the City of Winchester after proper charges have been preferred and spread of record, and after *630 a reasonable and proper notice to the appellants given, as provided by law." See also City of Fort Wayne v. Bishop, 228 Ind. 304, 92 N.E.2d 544 (1950). Since there is no official affirmative decision of the board and since coercive action would be void ab initio and contrary to law, Plaintiff-Appellant is not bound by the procedural steps of I.C. 1971, XX-X-XX-X and the motion to dismiss was improperly granted. Because of the above decision we do not at this time need to reach the question of whether the trial court had absolute discretion to refuse to permit late filing of security bond and verification. Appellee's Petition for Rehearing having failed to convince this court that our decision was erroneous is accordingly denied. HOFFMAN, C.J., and STATON, J., concur.