City of Frankfort v. Easterly

ON PETITION FOR A REHEARING. By petition for a rehearing the appellant insists that we did not pass upon its proposition *Page 273 to the effect that there was no evidence that the appellee was wrongfully discharged. We thought we had sufficiently covered that subject.

The appellant attempts to distinguish the case at bar from that of the City of Evansville v. Maddox (1940), 217 Ind. 39,25 N.E.2d 321, cited in the original opinion. The facts in the Maddox case were that a policewoman, detailed to the Department of Health and Charities, was discharged by the chief of police, without any charge, notice or hearing. In passing upon the sufficiency of the complaint this court said at pp. 46 and 47:

"While the chief of police is not authorized by statute to make appointments and discharge members of the police force, he does have control of and authority to direct the employees of that force. The complaint further discloses that, upon the dismissal of the appellee, the mayor with approval of the Board of Public Works and Safety appointed another person to that position, thereby recognizing appellee's discharge and approving the action of the chief of police."

In this case, it appears that the appellee was one of several policemen discharged by the acting chief under circumstances not unlike those in the Maddox case. Promptly thereafter the 6. Board of Public Works and Safety enlarged the size of the force and appointed more policemen than had been discharged. No one was specifically named as successor to the appellee. The appellant urges that these facts, as to which there is no dispute, are insufficient to show that the place previously occupied by the appellee was filled. It says in its brief: "Since the force was increased, there was no possible basis for any implication that any of the new policemen took the place of appellee." *Page 274 We cannot follow this reasoning. If the size of the force had been decreased, there might be some merit in the contention that the position previously occupied by the appellee had been left vacant. Manifestly, however, all existing vacancies were filled when the board appointed more new policemen than had been discharged. The evidence was sufficient to establish the appellee's wrongful discharge and the appointment of another to take his place.

What we said in the principal opinion on the subject of laches applies with equal force to the appellant's claim that there was a voluntary abandonment of his employment by the appellee.

Finally, it is asserted, by way of argument, that an affirmance of the judgment will require the city to discharge four policemen now employed and subject it to further liabilities. We 7. cannot be persuaded by any such considerations. The responsible officials of the city ought to have given some thought to the consequences of their acts before they assumed to ignore the law.

The petition for a rehearing is denied.

NOTE. — Reported in 46 N.E.2d 817.