Opinion
No. 27,860.
Filed May 20, 1943.
1. APPEAL — Briefs — Propositions and Authorities — Claimed Antecedent Error Not Covered by Assignment of Error — Question Not Considered. — On appeal from a judgment affirming the action of the board of public works and safety of a city in dismissing police officers, propositions set forth in appellants' brief concerning claimed antecedent error of the board have nothing to do with the assignment of error that the finding of the court is not sustained by sufficient evidence, and cannot be considered. p. 454.
2. MUNICIPAL CORPORATIONS — Police — Appointment and Removal — Determination of Questions by Charges Made Against Officers — Board of Public Works and Safety Acting in Ministerial Capacity. — The board of public works and safety of a city, in determining questions presented by charges against employees, acts in a ministerial capacity and as a fact-finding board. p. 455.
3. MUNICIPAL CORPORATIONS — Police — Appointment and Removal — Dismissal by Board of Public Works and Safety — Affirmance by Circuit Court — Appeal to Supreme Court — Extent of Consideration of Evidence. — Where a city board of public works and safety dismissed police officers on the statutory ground for dismissal of conducting themselves in a manner unbecoming to officers and gentlemen, and, on appeal from a judgment of a superior court affirming the action of the board, no fraud, capriciousness or illegality was shown, and the evidence was conflicting, the Supreme Court would not weigh the evidence or substitute its judgment for that of the board, where there was substantial evidence from which the board could have found that defendants were guilty of the charges filed against them. p. 455.
From the Elkhart Superior Court; William E. Wider, Judge.
Proceedings by Floyd D. Zellers and Murray Thomas against the City of South Bend to review the action of the board of public works and safety of said city in dismissing plaintiffs as members of the police force thereof. From a judgment affirming the action of the board and overruling plaintiffs' motion for a rehearing, plaintiffs appealed.
Affirmed.
Harry Taylor and Samuel Schulman, both of South Bend, for appellants.
Nathan Levy and Joseph A. Roper, both of South Bend, for appellee.
The appellants, former police officers of the City of South Bend, Indiana, were charged with conducting themselves in a manner unbecoming to officers and gentlemen. The charges were in writing and filed with the board of public works and safety of said city. The hearing was had and after its conclusion the appellants were found guilty as charged and were dismissed.
Within thirty days the appellants filed their complaint in the St. Joseph Superior Court, under § 48-6105, Burns' 1933, § 11478, Baldwin's 1934, as amended by chapter 282 of the Acts of 1935, page 1395. On motion the venue was changed to the Elkhart Superior Court and the action of the board of public works and safety was reviewed, and at the conclusion of the trial or review, the court affirmed the action of the board of public works and safety. Within the statutory ten days the appellants filed a motion for rehearing on the ground "that the finding of the court herein is not sustained by sufficient evidence." That motion was overruled and an appeal prayed and granted.
The assigned error is based upon the overruling of the motion for rehearing, and that the court erred in rendering judgment against appellants. This latter assignment raises no question.
Although the appellants assert five propositions in their brief, the first four have to do with claimed antecedent error of the board and have nothing to do with the single assignment 1. "that the finding of the court is not sustained by sufficient evidence," and under the rules of this court, regardless of their merit or lack of merit, they cannot be considered. Rule 2-17.
The board of public works and safety of a city in determining questions presented by charges against employees acts in a ministerial capacity and as a 2. fact-finding board. Lloyd v. City of Gary (1938), 214 Ind. 700, 703, 17 N.E.2d 836, 838.
In City of Elkhart v. Minser (1937), 211 Ind. 20, 25, 5 N.E.2d 501, 503, this court said:
"The court will not undertake to control the discretion of such boards in making orders in the administration of the affairs of the state so long as the orders are not tainted with fraud, capriciousness, or illegality."
The court on review merely determines whether or not the board acted within its legal jurisdiction.
The above case involved a city fireman, but the principle announced in that case is equally applicable where a policeman's rights are involved, as in the instant case. In fact, it has been held that the same rule applies to administrative boards generally, such as the board of public works and safety, public service commission and similar boards. School City of Peru v. State ex rel. Youngblood (1937), 212 Ind. 255, 267, 7 N.E.2d 176, 181.
The charges against appellants are based on one of the reasons given in the statute for which the board may punish the offending party by reprimand, forfeiture, suspension without pay, 3. dismissal or by reducing him or her to a lower grade and pay.
The evidence is conflicting and this court cannot weigh the evidence or substitute its judgment for that of the board. There is substantial evidence from which the board could have found that the appellants were guilty of the charges filed against them. No fraud, capriciousness or illegality is shown. Therefore the judgment is affirmed.
NOTE. — Reported in 48 N.E.2d 816.