126 P. 619 | Mont. | 1912
delivered the opinion of the court.
This action was. instituted to have determined the question whether the plaintiffs or the defendants are entitled, respec
Prior to January 3, 1910, Hamilton was a town. On that date it became a city of the third class. An ordinance enacted by the town council on October 1, 1904, contains, among other provisions, the following: ‘ ‘ Section 2. In addition to the mayor, alderman, city attorney, treasurer, police magistrate and town marshal as provided by the general laws, the board of aldermen may elect annually policemen, who shall hold office for one year unless removed by the mayor with the consent of the board of aldermen.” This is the only ordinance enacted by the town or city council providing for the establishment of a police department. No ordinance has ever been enacted authorizing the appointment of an “examining and trial board,” under the provisions of the statute commonly known as the “Police Commission Bill” (Laws 1907, Chap. 136; Rev. Codes, secs. 330A-3317).- From year to year since January, 1910, appropriations have been made for salaries for a chief of police and one night policeman. During the year 1908, there being vacancies in these offices, the mayor appointed the defendant Bishop chief of police and the defendant Howey night policeman, and his action was approved by the council. They entered at once upon the discharge of their duties. In May, 1910, they were reappointed by the mayor, and his action was again approved by the council. They were thereafter continued in office until May 6, 1912. The newly elected mayor, who then entered upon a discharge of his office, assuming that their terms had expired, and that their offices were vacant, appointed the plaintiffs Grush and Coulter to succeed them. His action was approved by the council. The defendants, however, refused to surrender their offices, and have since continued to perform the attendant duties, insisting that, by virtue of their appointment subsequent to the enactment of the Police Commission Bill and their possession of the qualifications prescribed thereby, they are entitled to hold
Section 3217 of the Revised Codes, after declaring what elective officers cities of the second and third classes shall have, provides: “There may also be appointed by the mayor, with the advice and consent of the council, one city clerk, who is ex-o'ffido city assessor, one chief of police, one city attorney, and any other officer necessary to carry out the provisions of this title.” Section 3218, which applies to towns, provides: “There may be appointed by the mayor, with the advice and consent of the council, one clerk, who may be ex-officio assessor and a member of the council, and one treasurer, who may be ex-offcio tax collector, and one marshal, who may be ex-officio street commissioner, and any other officers necessary, to carry out the provisions of this title. ’ Under its general legislative power (Rev. Codes, sec. 3259), the council of a city or town may provide for the appointment of as many policemen, including a chief of police in
Under the provisions of the statute quoted and referred to above, the appointments of the plaintiffs were regularly made by the incoming mayor; and they were entitled to their respective offices, unless it was incumbent upon the city authorities to provide by ordinance for the appointment of police officers under the provisions of the Police Commission Bill. If by fits pwn terms it applies to cities of the second and third classes and to towns, no appointment since its enactment has been valid; and the plaintiffs gained no right through appointment by the mayor. Under section 3 of this Act (Rev. Codes, sec. 3306), all members of a police force in a city falling within its provisions must serve a probationary term of six months before they can become permanent members. Under section 5 (Rev. Codes, sec. 3308), they must, prior to appointment for probationary service, have undergone examination as to their legal, mental, moral and physical qualifications before the examining board provided for in section 4 (Rev. Codes, sec. 3307), and have been found eligible. These requirements the plaintiffs could not meet, because no ordinance had been enacted creating an examining board. In appointing the plaintiffs as he did, the mayor evidently proceeded upon the assumption that the Act, while mandatory by its terms as to cities of the first class, is optional or permissive only as to cities of the other classes and towns. This brings us to the inquiry whether this assumption is correct.
The first section of the Act (Rev. Codes, sec. 3304) declares: “There shall be in every city and town of this state a police department which shall be organized, managed and controlled as in this Act provided.” If this broad declaration be taken as indicative of the intention of the legislature, the method of organizing, managing and controlling any municipal police force in this state prescribed in the following sections is exclusive.
Under this construction, the general law (Rev. Codes, see. 3217), conferring upon the mayor the power, with the advice and consent of the council, to appoint suitable persons to perform police service under the ordinance of the city or town providing for them, authorized him to appoint the plaintiffs as he did. The result is that the plaintiffs were properly appointed to their respective offices, and are entitled to have judgment accordingly.
It will be observed that the ordinance quoted above, under which plaintiffs were appointed, having been enacted when Hamilton was a town, mentions a town marshal, instead of a chief of police, and provides for the election of the policemen by the council. Counsel have not noticed in their briefs the apparent incongruity between this provision and the section of the statute cited, conferring the power of appointment upon the mayor. For this reason, we have not deemed it necessary to notice this feature of the case, but have chosen to treat the action of the mayor as if taken under the general statute, instead of under the ordinance. Nor do we attach importance to the fact that the ordinance has not been amended so as to provide for the appointment of a chief of police eo nomine.
The judgment of the district court is reversed and the cause is remanded, with directions to enter judgment for the plaintiffs.
Reversed and remanded.