122 P. 572 | Mont. | 1912
Lead Opinion
delivered the opinion of the court.
On September 30, 1910, Frank J. Edwards, then mayor of the city of Helena, presented to the Examining and Trial Board of the Police Department of that city a complaint in writing charging Leonard Bailey, a captain of police, with delinquency of official duty. Bailey had been appointed, had qualified, and was serving under the Metropolitan Police Law of this state. The Trial Board gave due notice to the accused, who appeared personally and by counsel and participated in the trial which followed. On October 10, 1910, the Trial Board rendered- its decision finding the accused guilty as charged in counts 1 and 2 of the complaint. Acting upon this decision, the mayor, on October 11, 1910, made an order discharging Bailey from the police force. This action was thereupon instituted by Bailey to have the decision of the Trial Board set aside upon the ground that the essential requirements of the law had not been observed by the board in this: (1) That each of the counts upon which plaintiff was found guilty is without substance, is fictitious, trivial, and insufficient to show incompeteney, neglect of duty, misconduct in office, or conduct unbecoming an officer; and (2) that the evidence introduced before the Trial Board fails to sustain either count. Attached to the complaint is a copy of each of the following papers: The complaint made by Edwards, the notice of the hearing, certain objections interposed by the accused, a motion to strike out certain portions of the complaint, the evidence taken before the Trial Board, the findings or decision of the board, and the order discharging the accused officer. An answer was presented by defendants, but it did not raise any
1. Of the two counts upon which plaintiff was convicted, the first, which relates to alleged misconduct at the time of a fire at Lenox, need not receive further consideration than to say that the record of the testimony taken before the Trial Board fails to disclose any substantial evidence to support it.
2. If the facts in the second count constitute a triable offense,
The triable offenses mentioned in section 3309, above, are: (1) Incompetency; (2) neglect of duty; (3) misconduct in office; (4) conduct unbecoming an officer. If the sufficiency of the complaint above should be determined by the rules of pleading which control in courts of justice, it is obvious that it is fatally defective; but such rules cannot have application to the proceedings before the Police Trial Board. The only requirement of the statute is that the charge shall be reduced to writing (sec. 3309, above); and if in substance it makes out any one of the triable offenses mentioned, it is sufficient. And even in determining this question the courts will apply the most liberal rules of construction, and necessarily so. The members of the Police Trial Board are not required to be learned in the law of pleading and practice; in fact, many board members are laymen entirely unfamiliar with court procedure. Neither is it demanded nor contemplated that the person preferring charges against a police
As will be observed by reference to the statute above, the triable offenses are stated in such broad terms as to defy accurate definition. In Falloon v. Clark, 61 Kan. 121, 58 Pac. 990, the court said: “The only grounds of removal by impeachment are ‘misdemeanor in office,’ and these terms we think are used in a parliamentary sense and mean misconduct in office. It is something which amounts to a breach of the conditions tacitly annexed to the office and includes any wrongful official act or omission to perform an official act. ’ ’
In State ex rel. Tilley v. Slover, 113 Mo. 202, 20 S. W. 788, the court was called upon to review an order removing an official stenographer. In the course of the opinion the court said: ‘ ‘ The phrase ‘misconduct in office’ is broad enough to embrace any willful malfeasance, misfeasance, or nonfeasance in office, and it cannot be doubted that an official stenographer who willfully sets at naught this constitutional prohibition by refusing to personally devote his time to the performance of his official duties, whatever his reason therefor may be, is guilty of misconduct in office, within the meaning of the statute, and may be removed from office by the judge of the court of which he is such an officer.” This language is quoted with approval in Coffey v. Superior Court, 147 Cal. 525, 82 Pac. 75.
In Meehem on Public Offices and Officers, section 457, the author says: “Misconduct, willful maladministration, or breach of good behavior, in office, do not necessarily imply corruption
“Misconduct” is defined as “wrong conduct; bad behavior; mismanagement.” The synonyms are: “Misbehavior; misdemeanor; mismanagement; misdeed; delinquency; offense.” The verb “misconduct” is defined: “To conduct amiss; to mismanage.” (Webster’s International Dictionary.)
In effect, this second count charges that, when complaint was made to Bailey by Bollinger that there was an obstruction on a
It is beside the question to urge that the Trial Board ought not to have found Bailey guilty upon the evidence produced. The
In People ex rel. Lawson v. Martin, 9 App. Div. 531, 41 N. Y. Supp. 578, a policeman was discharged for leaving his beat and stepping into a saloon. The court expressed the opinion that the penalty imposed was extremely severe, but approved the action of the board in discharging the accused.
In People ex rel. Taylor v. York, 58 App. Div. 621, 68 N. Y. Supp. 1077, a policeman was discharged for being absent from duty three days without permission, and this action was approved by the court. (169 N. Y. 578, 61 N. E. 1133.)
In State ex rel. Hart v. Common Council, 53 Minn. 238, 39 Am. St. Rep. 595, 55 N. W. 118, the court said: “We recognize the prime importance of each department of government avoiding anything like improper interference with the others in the discharge of their functions; also, that while eity councils and other municipal bodies may not have the power to remove from office except for cause, yet, this power being designed to insure efficiency and! fidelity in the discharge of official duty, the degree of ineompetency or inefficiency which amounts to sufficient cause for removal must of necessity, within certain established limits, rest somewhat in the sound discretion of the officer or body in whom the power of removal is vested. We also recognize the fact that while in the exercise of this power their proceedings are quasi judicial, and hence reviewable by the courts, yet they are not courts, but essentially legislative and administrative bodies; and that their action shall be considered in view of their' nature and the purposes for which they were organized, and not tested by the strict legal rules which prevail in trials in courts of law.
We are unable to agree with counsel for plaintiff that the offense of which he was convicted was trivial in its nature. The character of his conduct is not to be measured by the consequences which actually flowed from it, but as well by the consequences which might reasonably have resulted. The evidence discloses that the obstruction on the sidewalk was a dangerous one; that another party had fallen over it before Bollinger was injured; that though Bailey was notified on Saturday night he gave the matter no attention whatever, and the obstruction was not removed until Tuesday afternoon following, and then not until complaint had been made to another officer, of the city. It is not difficult to imagine that, if in the meantime someone had been seriously injured because of this obstruction, the consequences to the injured individual and possible litigation against the city might fairly have been charged against Bailey’s neglect of duty.
The burden was upon the plaintiff to show that in the proceedings had before the Examining and Trial Board the essential requirements of the law were not complied with, and in this, we think, he failed.
The judgment of the district court is reversed, and the cause is remanded, with direction to dismiss the proceeding.
Reversed and remanded.
Concurrence Opinion
: I concur in the result; but to my mind the most convincing argument in favor of the action-of the Examining and Trial Board is found in the fact that section 1088 of Article III of the Ordinances of the City of Helena provides
