83 Minn. 473 | Minn. | 1901
May 1, 1887, at the time the mayor of the city of St. Paul attempted to appoint the plaintiff a police sergeant, it was provided by the charter (Sp. Laws 1887, c. 18, § 12) as follows:
“The mayor shall appoint the chief of police, the captains, the detectives, the sergeants and all policemen, patrolmen and police officers at any time appertaining to the police department of said city, and by whatever name designated, with the advice and consent of the common council; but no person shall be eligible to the appointment as policeman, patrolman or other police officer, who is not a citizen of the United States, or under the age of thirty-five years, able to read and write the English language, a resident of the city of St. Paul for at least two years preceding his appointment, and who is not of good health and physique, the standard of admission into the army of the United States as established bv examination to govern in this particular.”
The first question for consideration, therefore, is whether plaintiff was eligible to appointment at the time in 1887, when it was made. Prior to the year 1883 there had been several enactments in respect to the police force of the city of St. Paul, in which provisions were made for a department consisting of the mayor, chief of police, captains, lieutenants, sergeants, detectives, “policemen, patrolmen, and police officers,” each being specially mentioned and provided for. In most of these enactments certain requirements were specified as to qualifications for appointment, but in others none whatever were demanded, the law being silent on the subject. By Sp. Laws 1885, c. 7, § 18, — a charter amendment, — there was a provision that the department should consist of the mayor, a chief, one captain, two lieutenants, four sergeants, three detectives, and as many policemen, patrolmen, and police officers” as might be authorized by the council, with the approval of the mayor. It was further provided that
“No person shall be eligible to the appointment as captain, ser*476 geant, detective, policeman, patrolman or other police officer who is not a citizen of the United States, or under the age of thirty-five years, able to read and write the English language, a resident of the city of St. Paul for at least two years preceding his appointment, and who is not of good health and physique, the standard of admission into the army of the United States, as established by examination, to govern in this particular.”
The next legislation upon this particular matter was the act of 1887, before quoted; and it will be noticed that captains, sergeants, and detectives, all of whom had expressly been made subject to the eligibility tests 'prescribed in the act of 1885, were not mentioned. They were omitted from the list as set forth in the enactment of 1887. The latter law repealed that of 1885, and by its provision's we are obliged to pass upon the question of plaintiff’s eligibility to the office of sergeant. It is plain that a radical change as to qualifications was intended and accomplished by the amendment. An enactment which required that appointees to positions as captain of police, as sergeants, as detectives, or as policemen, patrolmen, or other police officers must have certain specific qualifications was amended by striking out all reference to captains, sergeants, and detectives, but retaining the words “policeman, patrolman, or other police officer,” the result being that policemen, patrolmen, and other officers, only, were required to possess these special qualifications. These, requirements were demanded of persons who' might be appointed as policemen or patrolmen or other police officers, and a distinction made between officers of the force expressly named and provided for in the charter and other members, generally designated as “patrolmen, policemen, and other police officers,” — a distinction which had prevailed in police legislation from the earliest history of defendant city.
We think this amendment of 1887 had a purpose, and that the whole history of legislation upon this subject clearly indicates that it was the intention of the legislature to except certain officers, who had theretofore been subject to the statutory requirements, from the operation thereof, and to relieve them from restrictions as to eligibility which had previously prevailed. Appointees as policemen, as patrolmen, or as “other police officers”— whatever that term may mean — remained subject to the statute as
As before stated, the charter provided that all appointments to the police force must be made by the mayor, with the advice and consent of the council, and the council failed to take any express action in regard to plaintiff’s appointment as sergeant. No particular form of expressing its advice or consent or concurrence in the appointment was required. Nothing whatever was done, except that the council approved the monthly pay rolls, in which respondent’s name appeared as sergeant, and authorized payment to him as such officer, for more than seven years. On at least
The only question remaining is, did the plaintiff acquiesce in the removal attempted by the mayor, abandon his office, and waive his rights thereto ? That he might do this, and thus resign by 'implication, is beyond question. Byrnes v. City of St. Paul, 78 Minn. 205, 80 N. W. 959. The court below found that the removal was against the plaintiff’s protest, and without his consent, that the assembly refused to concur in the attempted removal, and that plaintiff always asserted and maintained his right to the position of sergeant, and to the pay therefor. The proof was that, when plaintiff turned over his insignia of office to his superior officer in obedience to orders, he did so under protest, claiming that he had been illegally removed; and also that, a few days later, he addressed the city council in regard to his removal, protesting against it, and insisting that he was still a sergeant, and entitled to compensation as such. In fact, according to the evidence, he, as well as the assembly, refused to acquiesce in the attempted removal. The trial court was justified in finding that in no manner did he abandon his office, or waive his right to compensation for that part of the time not affected by the statute of limitations. He was put on the force as patrolman some three months after the alleged dismissal, and the only thing he failed to do was to institute legal proceedings against the city to cause an earlier reinstatement. This he was not obliged to do under the circumstances, for it was his legal right to wait, and then to enforce collection of his pay in the courts.
. The claim that plaintiff cannot recovex* because there was a de facto officer to whom the salary was paid is without merit, under
Order affirmed.