Rees v. City of Muncie

Lockyear, J. — This was an action by the appellant against the city of Muncie to recover salary alleged *481 to be due by reason of his having been appointed a patrolman and a member of the police force of said city and by reason of an alleged unlawful attempt of the Board of Public Safety of said city to discharge him. The appellant alleges in his complaint that he is still a member of the police force of said city and entitled to a salary of $140 per month from the date of his discharge to the time of the trial in this action. The appellee filed an answer in five paragraphs. Those which we need to consider are the first, an answer in general denial, and the third paragraph of answer which alleges that the appellant voluntarily retired from the police force of said city and abandoned the office, and has not since done or performed or offered to do or perform any work as a police officer of the police force of the city of Muneie. The court found the facts specially and stated conclusions of law thereon. The essential facts found by the court were, in substance, that Albert Rees was on the third day of January, 1922, appointed by the Board of Public Safety of said city as a detective of the police force of said city, and was duly qualified as such, taking an oath and filing a bond as by law required; that his salary was $130 per month and was increased to $140 per month; that on the 12th day of October, 1922, at a meeting of said Board of Public Safety, in order to provide funds to aid in certain necessary repairs and equip the motor equipment of said department, said Board of Public Safety reduced the night force of the department by laying off two detectives, to wit: Jerry Curran and Albert Rees, the appellant. Said order was entered upon the records of said board to become effective October 15, 1922, and said night force was reduced for said reason as stated above. *482 That on the said 12th day of October, 1922, at the time the order of said Board of Public Safety reducing the force was made, Albert Eees was on his vacation, which expired on October 15, 1922; that after the action of said board had been taken, and before the appellant had reported for duty from his said vacation, the chief of police of said city of Muncie, pursuant to the order of said Board of Public Safety, called the appellant over the telephone and informed him of the said board’s action and requested him to return his detective badge to police headquarters. That the said appellant did send his said detective badge to the said police headquarters, but he made no inquiry as to whether or not any charges had been filed against him and demanded no hearing before the said Board of Public Safety; that he never thereafter reported for duty to the said Board of Public Safety or to the said chief of police or to any other office of said department, but acquiesced in the action of said Board of Public Safety and abandoned his said office as such detective and started a private detective agency of his own. The court stated its conclusions of law that the law is with the appellee, that the appellant is entitled to recover nothing and that the appellee is entitled to recover costs from the appellant. Judgment was rendered in -harmony with the conclusions of law as stated by the court.. Sec. 160 of the Acts 1905, p. 339, which is Sec. 10864 Burns 1926. This section is applicable to the facts of this case and a part of said section is as follows: “Every member of the fire and police forces, 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 poli *483 tics after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board.” (Our italics.) The appellant assigns as error the overruling of the motion for a new trial, which is upon the grounds that: The decision of the court is not sustained by sufficient evidence; the decision of the court is contrary to law. Appellant also assigns as error that the court erred in each separate conclusion of law. There is evidence in the record to support the court’s finding of fact in that the appellant, upon request, returned his badge to police headquarters and made ho inquiry as to whether or not any charges had been filed against him and there is no evidence that he ever demanded a hearing before the board nor did he thereafter report for duty, but conducted a private detective agency of his own and sought to be appointed a constable, a deputy sheriff, and also sought to be appointed special policeman without pay under the same Board of Public Safety. From the evidentiary facts we are of the opinion that the court was justified in finding as an ultimate fact that the appellant abandoned his office and the conclusions of law are properly stated. Where, as in this case, there is any competent evidence to support the finding of the court that the appellant abandoned the office and failed to demand a hearing such finding is binding on this court. That the appellant may abandon his office and acquiesce in the action of the Board of Public Safety is beyond question. Byrnes v. City of St. Paul. (1898), 78 Minn. 205, 80 N. W. 959, 79 Am. St. Rep. 384; Larsen v. City of St. Paul (1901), 83 Minn. 473, 86 N. W. 459; Hagan v. City of Brooklyn (1891), 126 N. Y. 643, 27 N. E. 265; Phillips v. City of Boston *484 (1890), 150 Mass. 491, 23 N. E. 202; Bernard v. City of Hoboken (1859), 27 N. J. L. 412; Leonard v. City of Terre Haute (1911), 48 Ind. App. 105, 93 N. E. 872. The judgment is affirmed. Kime, J., dissents.