106 P. 703 | Mont. | 1910
Lead Opinion
delivered the opinion of the court.
Appeals from a judgment awarding the relator a peremptory writ of mandamus, and from an order denying defendant’s motion for a new trial.
At the time of the passage and approval of the Act of the legislative assembly called the “Police Commission Bill” (Chapter 136, Sessions Laws of 1907 [Revised Codes, secs. 3304-3317]), the relator was a member of the police force of the city of Helena. When the police department of the city was reorganized and constituted under the Revised Ordinances of the city in pursuance of the statute, he applied to the examining and trial board of the police department, and successfully un
The second one of these contentions was determined in the decision in State ex rel. Quintin v. Edwards, supra, adversely to the defendant. On this point that decision is conclusive.
In support of the first contention, it is argued that there is a substantial distinction between a policeman, a member of the police force, and a police eaptain, a member of the police department, not only in rant, but in the duties which he is required to perform, and that, as a police captain is not technically a member of the police force, he is merely a police officer, and hence that the ordinance permitting his appointment for an indefinite term and the appointment thereunder are void. Counsel enters into an elaborate argument to demonstrate that the statute recognizes this distinction, but his reasoning is more plausible than convincing. The police force of a city is the body of men appointed to preserve the peace and good order of the city. (31 Cyc. 901.) A police officer “is one of the staff •of men employed in cities and towns to enforce the municipal police; i. e., the laws and ordinances for preserving the peace and good of the community.” (Id., 902.) The term “policeman” is generic, and includes every member of the police force,
The time which elapsed after the removal of the relator until he brought this proceeding was a few days more than ten months. It is contended by counsel that this delay was inexcusable and concludes relator’s right to relief. Under section-6451, Revised Codes, actions for relief for which a limitation is not elsewhere prescribed may be brought within five years. We find no other limitation aorfficable to a proceeding of this.
It appears from the evidence that at the time the action entitled State ex rel. Quintin v. Edwards was instituted, the relator and his associates assumed that it would result in a determination of all the questions affecting their rights, as well as those of Quintín. To avoid the expense of four separate-actions, they agreed with Quintín to assist him in the employment of counsel and the payment of other expenses necessary to prosecute his action. When it became apparent that the* litigation would continue, and they were unable, on application: to counsel for defendant, to obtain a stipulation that the rights; of all should be determined by the result in that case, they thereupon brought their separate actions. While it may be-the result that the relator cannot upon his restoration to office-recover from the city full compensation for the time during-which he has been out of service—and upon this question we-do not express any opinion—no prejudice will be done to the-defendant by sustaining the action, nor will any confusion be-wrought in the administration of the affairs of the city. The-facts upon which he bases his claim for relief are not disputed.
The other contentions made in the brief are not of sufficient merit to demand special notice.
The judgment and order are affirmed.
Affirmed.
Dissenting Opinion
I dissent for the reasons given in my dissenting opinion in State ex rel. Quintin v. Edwards, ante, p. 287, 106 Pac. 695.