Palmowski v. Town of New Chicago

HOFFMAN, Judge. This appeal arises from a class action suit instituted by the police officers of New Chicago, Indiana against the members of the Town Board of the Town of New Chicago and the Commissioners of the Town of New Chicago Police Commission (hereinafter referred to as the “Town”). The only issue before this Court on appeal is whether or not the policemen are entitled to the same statutory minimum salary as that paid to policemen of cities of the fifth class. Summary judgment on this issue was granted in favor of the Town. The parties have stipulated that the Town has a population of between 2,000 and 2,500 persons. The Town’s population is therefore within the parameters of the population of a fifth-class city, as defined by IC 1971, 18-2-1-1 (Burns Code Ed.). However, the Town has never had an election to become classified as a city pursuant to IC 1971, 18-3-2-1, and therefore, it remains a town and not a city. The appellants’ case is based on an argument involving two separate Indiana statutes. The first statute, IC 1971, 19-1-5-1 (Burns Code Ed.) establishes the salaries for policemen in fifth-class cities. All parties agree that this statute does not apply directly to the Town of New Chicago. A statute applicable to a fifth-class city is not applicable to a town merely because the town has the same population as a fifth-class city. Penrod et al. v. Hoover et al. (1957), 128 Ind.App. 334, 146 N.E.2d 817. Plaintiffs do contend that the minimum wages guaranteed by IC 1971, 19-1-5-1 to city policemen must serve as a standard of comparison for .determining minimum salaries for employees of a town metropolitan police commission. To reach this conclusion, the plaintiff policemen offer a unique interpretation of two sections of the statute which authorizes and regulates town boards of metropolitan police commissioners. The creativity of their argument is appreciated but, nonetheless, their reasoning is unpersuasive. The statutes are clear and unambiguous. No rules of statutory construction or judicial investigation of legislative intent are necessary to an understanding of this law. The first relevant section of the town board authorization statute reads, in part: “Such commissioners shall fix and determine the compensation to be paid to members of the police force and other employees in such amount as will be just and reasonable and in compliance with any law of the state of Indiana governing such compensation or salary.” IC 1971, 19-1-25-2. The policemen maintain that the phrase “any law of the state of Indiana governing such compensation or salary” requires the [689] commissioners to comply with IC 1971, 19-1-5-1. That statute, discussed above, clearly applies only to cities, not towns. The policemen ignore the plain meaning of the word “governing.” The commissions are required to comply with any state law which governs the salaries of town policemen. Since IC 1971, 19-1-5-1 does not govern town policemen, the commissioners need not comply with the statute. This conclusion is obvious by a simple reading of the plain language of the statute. The plaintiffs also rely on a second section of the same statute, which reads, in part: “The members of such police departments shall be entitled to all the rights, powers and privileges granted by the laws of the state to any member of police departments including all the rights, privileges and benefits under the police pension fund as provided for in chapter 51 of the Acts of 1925 of the General Assembly of the state of Indiana and all acts amenda-tory thereof and supplemental thereto.” IC 1971, 19-1-25-4. One of the rights to which the plaintiffs assert they are entitled is the right to minimum compensation. This assertion is correct. The policemen then contend that their minimum compensation should be determined by using IC 1971, 19-1-5-1 as a standard of comparison to determine the appropriate level of minimum compensation. On this issue, the argument must fail. Merely because the Town of New Chicago has a population comparable to that of a city of the fifth class, the Town Board is not required by law to comply with the statutes applicable to those cities. Further evidence of the fact that the minimum wage statute has no application to towns is the often cited maxim “expres-sio unius est exclusio alterius.” This maxim was discussed in the case of Shupe v. Bell et al. (1957), 127 Ind.App. 292, at 298, 141 N.E.2d 351, at 354: “One of the oldest maxims of the law is, ‘The express mention of one person or thing is the exclusion of another.’ War-ton’s Legal Maxims, p. 11. Otherwise stated, ‘What is expressed makes what is silent to cease.’ Coke Litt., 210a; Woodford et al. v. Hamilton et al. (1894), 139 Ind. 481, 39 N.E. 47. ‘When the law is in the affirmative that a thing should be done by certain persons or in a certain manner, this affirmative manner contains a negative that it shall not be done by other persons or in another manner.’ 26 Am. and Eng. Ency. Law, (2nd ed.) 605, and cases cited therein; State ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 95, 105 N.E. 909.” Had the Legislature intended to make the minimum wage law applicable to policemen who are employed by a town, it could have done so by making that express provision. By failing to do so, towns are excluded from the scope of this statute. For these reasons, the judgment of the trial court is affirmed. Affirmed. GARRARD, P. J., concurs. STATON, J., dissents with opinion.