State Ex Rel. Palm v. City of Brazil , 225 Ind. 308 ( 1947 )

ON PETITION FOR REHEARING Appellants have filed a petition for rehearing in which they point out a mistake in our statement of facts in the original opinion. In the original opinion, we inadvertently said 8. that each of the relators was given a notice of dismissal signed by the mayor on July 30, 1945, and that the relators had given a notice to the mayor on July 31 that they had reconsidered and had decided to continue their employment. The dates should be reversed. The notice of reconsideration was dated July 30, and delivered to the mayor on that date, according to the records. The notice of dismissal was dated July 30, but was not served until July 31. However, the sequence of these events was not important or controlling in our decision of the case. The case was decided upon the theory that the employment by the City of each relator was entirely contractual and that the trial court had found upon substantial evidence that relators had themselves terminated their contracts of employment on July 24. Their contracts of employment having been terminated, it required the agreement of both parties to make new contracts. Their notices that they would continue were unilateral and ineffective and it made no difference whether such notices were before or after an equally ineffective notice of dismissal by the mayor.

Appellants, in their petition for rehearing, do not contend that the Board of Public Works and Safety acted upon the mayor's report that he had dismissed relators, but they contend that the Board of Public Works and Safety approved appointments by the mayor to fill the vacancies created by the dismissals by the mayor and they say in effect that this was tantamount to approval by the Board of Public Works and Safety of dismissals by the mayor. We do not think this follows. The record shows without contradiction that all members of the Board were present when the relators "resigned" on July 24, and the Board may have considered they were filling vacancies caused by the "resignations" even though the mayor had reported the appointments to be to fill vacancies caused by removal. Such construction of their action is consistent with the fact that the trial court decided the case upon the theory that the separation of relators from service was by their own act and not by the act of the mayor or the Board of Public Works and Safety.

Upon a careful reconsideration of the case, we are convinced that a correct result was reached and the petition for rehearing is therefore overruled.

NOTE. — Reported in 74 N.E.2d 917.