89 Vt. 1 | Vt. | 1915
At the time this controversy arose the charter of the defendant city was contained in No. 261, Acts of 1906. Section 181 of that act provides for a regular police force. It also provides that applications for positions on that force shall be filed with the board of police commissioners; and that, after
At the time here in question, a rule, so made and promulgated, was in force, which provided that in order to be eligible to appointment as a regular policeman the “applicant” should be not less than twenty-five nor more than fifty-years of age.
On March 20, 1907, James E. Burke, then mayor of the city, adjudging that the needs of the city required another regular policeman, appointed this plaintiff to that office. At this time, there were no names certified to the mayor under §181., and his action was taken under the last paragraph of §182, and in conformity with the requirement as to the division between political parties. The plaintiff qualified and was assigned to duty on the day of his appointment.
Mayor Burke’s term of office expired on the first Monday of April, 1907, when he was succeeded by Walter J. Bigelow. On April 25,’ Mayor Bigelow suspended the plaintiff pending investigation of certain charges preferred by him as mayor. Among these was one that the plaintiff was physically disquali-.
Thereafter, for a period of several months, the plaintiff daily presented himself at headquarters and asked to be assigned to duty. He was not allowed to serve as policeman, but was paid his salary up to the time of his dismissal.
Trial below was by the court, and a pro forma judgment was rendered for the plaintiff for the amount of his specification.
The plaintiff was legally appointed, and became a de jure officer. The action of Mayor Burke was in strict accord with the provisions of the charter. It was for him to say whether the city required another regular policeman or not; and the commissioners having failed to provide names of applicants properly certified, he was authorized to appoint the plaintiff, provided he did not thereby violate the requirement as to the division between political parties. If we were to assume that the commissioners had the power to do so, it does not appear that they ever promulgated a rule specifying the qualifications of the policeman who should be appointed under the last paragraph of §182. Indeed, it is not claimed that the rule mentioned applied to such appointees, and the use of the word ‘ ‘ applicants ’ ’ shows that it does not. It evidently applies only to those who are specified in §181.
It follows from this, that the attempted removal of the plaintiff was illegal and void. The only fair interpretation of the record is that the commissioners found the plaintiff guilty of physical disqualification because he was too old when appointed. Mayor Bigelow correctly understood their report to him, and his action was based upon no misapprehension of the result of the board’s action. But since the rule did not apply
But the defendant says that if all this be true, this action cannot be sustained until the plaintiff has proceeded by mandamus for reinstatement or some other appropriate action to establish his title to the office.
It is true as shown by the defendant’s brief, that some courts hold that inasmuch as a policeman is a public officer, he must first establish his right to the office, before he can sue to recover the salary attached thereto. See Hoboken v. Gear, 27 N. J. L. 265; Gibbs v. Manchester, 73 N. H. 265, 61 Atl. 128. But others hold,- — and with better reason, we think, — that it is necessary to first proceed to establish „ title to the office only when there is another in actual possession of it. Gorley v. Louisville, 108 Ky. 789, 55 S. W. 886; Leonard v. Terre Haute, (Ind.) 93 N. E. 872; O’Hara v. New York, 46 App. Div. 518, 62 N. Y. Supp. 146; Morgan v. Denver, 14 Colo. App. 147, 59 Pac. 619.
Why should this plaintiff; institute proceedings for reinstatement, when he has never been removed? He has never lost title to the office, and can establish that fact as well in this action as in any other.
When there is a de facto officer in possession, there is good reason for saying that the de jure officer should first establish his title; for otherwise, there would be a determination of that question in a suit to which a rival claimant was not a party, and the interests of the city might be jeopardized. But when, as here, no successor has been appointed, there is no advantage to anyone in requiring two suits, for one will do as well.
An office having emoluments attached to it is a thing of value, though it is primarily an agency for public purposes. 'The right to the emoluments attaches to and follows the legal title to the office. A de jure officer cannot be deprived thereof without due process of law. Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280; Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730; Andrews v. King, 77 Me. 231; Chicago v. Luthardt, 191 Ill. 516, 61 N. E. 410.
Such an officer may recover his salary after an attempted removal which fails for illegality. The''action of Mayor Bigelow being ineffective as a removal, the plaintiff is entitled to recover. 1 Dill. Mun. Corp. §429; 2 Abbott Mun. Corp. §641; 2 McQuillan Mun. Corp. §520; Shaw v. Macon, 19 Ga. 468; Stadler
Of the amount of the recovery below the defendant makes no complaint in its brief, so on that subject we say nothing.
Affirmed.
