111 P. 377 | Or. | 1910
delivered the opinion of the court.
This is an action to recover from the city of Portland $2,905.56 as salary alleged to be due to plaintiff, a detective on the police force of the city. The substance of the facts alleged is that the charter of the city of Portland enacted by the legislature in January, 1903, provides for the appointment of all officers and employees in the subordinate administrative service of the city under the civil service provisions of the charter, which include all policemen and detectives, except the chief of police. The executive board consists of ten members besides the mayor, and is the general executive department of the city, among other things having charge of the police department, which, by section 179, shall be appointed subject to the civil service rules, and, by section 180, shall consist of a “chief of police, and all necessary captains of police, detectives, patrolmen, and clerks.” Each detective is required to take an oath of office and give a bond in the sum of $1,000 for the faithful discharge of his duties. The executive board has power to suspend or remove any subordinate officer or member of the police department under the civil service rules. No employee under the civil service rules shall be discharged except for cause upon written charges, and any employee so discharged may within ten days demand of the civil service commission an investigation of the charges, and, if it is found that the charges are untrue, such employee shall be reinstated by such civil service commission. On the third day of May, 1905, plaintiff was appointed a detective under the civil service rules, and served as such under the appointment until July 1, 1907, when, upon written
The answer admits the allegations of the complaint, and pleads two affirmative defenses: (1) That no service was rendered by plaintiff during the time of the suspension; and (2) that during that time plaintiff had other employment, the compensation for which exceeded the amount of the salary involved, and alleges that by reason thereof plaintiff was not damaged. A demurrer was sustained to these defenses and judgment rendered in plaintiff’s favor upon the pleadings, from which defendant appeals.
There is no doubt that a policeman is an officer. He is made a peace officer by Section 1593, B. & C. Comp., and a large part of his duties are such that he must have authority to act, not as agent for the state or city, but by virtue of the office: Fitzsimmons v. City of Brooklyn, 102 N. Y. 536 (7 N. E. 787: 55 Am. Rep. 835) ; Padden v. City of New York, 45 Misc. Rep. 517 (92 N. Y. Supp. 926) ; City of Chicago v. Bullis, 138 Ill. App. 297; City of Chicago v. Luthardt, 91 Ill. App. 324; State v. Edwards 40 Mont. 313 (106 Pac. 703). And, when legally
“When the duration of any office is not provided by this Constitution, it may be declared by law; and if not so declared, such office shall be held during the pleasure of the authority making the appointment. But the legislative assembly shall not create any office, the tenure of which shall be longer than four years.”
The offices whose duration are “provided by this constitution,” so far as they relate to the administrative department of the state, are specified in Article VI, Section 7 of which provides:
“Such other county, township, precinct, and city officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law.”
Evidently the officers of the city are named in section 11 of the charter, and their term fixed by section 18 as a compliance with the provisions of the constitution above quoted. Section 10 provides that “the power and authority given to the municipal corporation of the city of Portland is vested in a mayor, council, and executive board, and such other boards, bodies, and officers as are provided by this charter.”
“Section 11. There shall be elected, as hereinafter provided, a mayor, treasurer, municipal judge, city attorney, auditor, and fifteen councilmen, who shall be officers of the city of Portland.”
The duration of none of the offices of the city is fixed by the constitution, and the police department is not included in'section 11 of the charter by which the legislature determined what offices were created by it within Section 2, Article XV, and Section 7, Article VI of the Constitution. This legislative intention appears through
“It is but decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the constitution is proved beyond all reasonable doubt.”
And in Fletcher v. Peck, 6 Cranch 87 (3 L. Ed. 162), it is said: “The question whether a law is void for its repugnancy to the constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case.” Anderson v. Ritterbusch, 22 Okl. 761 (98 Pac. 1002) ; State v. Edwards, 40 Mont. 313 (106 Pac. 703).
Therefore the demurrer was properly sustained. The judgment is affirmed. Affirmed.