54 Neb. 486 | Neb. | 1898
Lead Opinion
The relators were police officers of the city of Omaha, and being dismissed from service applied to the district court of Douglas county for a writ of mandamus to compel the respondents, as members of the board of fire and police commissioners, to reinstate them. An alternative writ was issued, an answer was filed, and a trial had, which resulted in the allowance of a peremptory writ as prayed. The respondents complain of the judgment and ask that it be reversed. The relators were dismissed from the police force under the authority of the following resolution adopted by the board: “Whereas, the fund provided by the mayor and the city council to maintain the police department is wholly insufficient to pay the salaries of the present police force, and the continuance of the force now in the employ of the city will create an overlap in an amount exceeding the sum of $3,400, which is wholly unauthorized under the laws controlling the action of the board, it therefore becomes the duty of this board to dismiss such a number of officers and patrolmen as will bring the expenditures within the limit of the funds placed at its disposal. Therefore, this board considers, finds, and declares that the proper management of said police force requires that the following officers and patrolmen be removed from their several offices, to-wit.: Sergeants, F. D. Mitchell and R. W. Chamberlain; detectives, E. H. Hemming and W. W. Cox; patrolmen, W. H. Shoop, R. A. Wfilbur, James Kirk, and S. G. Hoff. It is therefore ordered that the foregoing officers and patrolmen be removed from their respective offices, to take effect upon and after September 30.”
The contention of the relators is that the adoption of the foregoing resolution and the action taken in pursuance thereof were in violation of the provisions of section 169 of the city charter, which is in part as follows: “All powers and duties connected with and incident to the appointment, removal, government, and discipline of the
The respondents having been .dismissed from the service without a hearing- or an opportunity to be heard, the question, and the only one presented by the record for decision, is whether the action of the board was forbid
Counsel for relators contend that this court cannot review the judgment because the clerk of the district court failed to certify that the record contains a transcript of all the proceedings. A formidable array of cases from other jurisdictions has been marshaled in support of this contention; but the rule in this state has been settled the other way. This court has repeatedly held that the record brought here should contain only what is essential to a correct understanding of the case. (Morgan v. Larsh, 1 Neb. 361; Smith v. Fife, 2 Neb. 10; Galley v. Galley, 13 Neb. 200; Hilton v. Bachman, 24 Neb. 490.) Our conclusion is that the facts stated in the alternative writ do not show that the relators are entitled to any relief. The judgment of the district court is therefore reversed and the proceeding dismissed.
Reversed and dismissed.
Dissenting Opinion
I dissent from the judgment just rendered herein, although heartily agreeing with the majority that a member or officer of the police department of a city of the metropolitan class cannot-be discharged from the service upon political grounds; that removals-essential to the proper management, discipline, or the more effective service of said department must be made pursuant to such rules and regulations as may be adopted for that purpose by the board of fire and police commissioners; and that no member of the police force of said city can properly be discharged for alleged misconduct, unfitness, dereliction of duty, or other cause affecting his character or standing as a public servant, except upon charges preferred against him, and after a notice and hearing. Conceding the soundness of the proposition enunciated by my associates that the services of a member of a police force of the city of the class to which Omaha belongs may be dispensed with, without formal charges having been made or an opportunity to be heard, where the ground of discharge is that the revenues of the city available for the support of the department are inadequate for the payment of his salary, nevertheless the action of the respondents in attempting to remove the relators from their offices, in my judgment, was unauthorized and illegal. If the discharge of these members of the police force was on economic grounds, as assumed in the majority opinion, the permanent relieving them of their positions by the board of fire and police commissioners was wholly, unwarranted. Relators, at most, could have been suspended from their respective positions until such time as the funds at the disposal of the board were sufficient to meet the expenses of the department without a reduction of the force. (Lethbridge v. Mayor, 30 N. E. Rep. [N. Y.] 975.) The intention and purpose of the legislature were to place the police department of a city of the metropolitan class under civil service rules, This
The statute, as will be observed, requires the board of fire and police commissioners to adopt suitable rules and regulations governing appointments and removals of members of the police department. All dismissals from the service, whether on the ground that the revenues at the disposal of the board with which to maintain the department are exhausted, or because of misconduct, unfitness, or dereliction of official duty, must be made in accordance with rules and regulations adopted by the board. There is no pretense in this case that any such rules or regulations have been promulgated by the board, or that the employment of relators was terminated in pursuance thereof. The board possesses limited powers, and it must affirmatively appear that it has acted within the scope of the authority conferred. Presumptions cannot be indulged in favor of the validity of its acts.
Again, it does not appear that relators were discharged from their positions on economic grounds. It is true the preamble to the order of dismissal recites that the funds at the command of the respondent were insufficient to maintain the police force then existing, but the finding upon which the order in question was based proceeds upon a different ground. It states “this board considers, finds and declares that the proper management of said police force requires that the following officers and patrolmen be removed from their several offices.” This is equivalent to a declaration that relators were discharged or removed for some alleged misconduct, unfitness, or dereliction of duty; yet no charges were preferred against
It is said the relators were not discharged,-but that the places which they filled were abrogated and ceased to exist. This court ought not to so declare, since the answer or return of the respondents to the alternative writ admits the removal of relators from their several offices, and the order of dismissal states “that the foregoing officers and patrolmen be removed from their respective offices.” The word “removed,” in the sense employed in this order, is equivalent to “discharged.” There is no averment, nor evidence to establish, that the positions were abolished. For the.reasons stated the judgment of the district court should not be disturbed.