State ex rel. Brown v. Appleby

139 Wis. 195 | Wis. | 1909

Barnes, J.

Sec. 18 of ch. Ill of the special charter of

the city of Janesville (ch. 221, Laws of 1882) confers on the city marshal all the powers, of a constable under the laws of this state. It also provides that t

■“it shall be his special duty to cause all laws, ordinances, orders, resolutions and by-laws in force in this city to be kept, observed and performed, and to do and perform such acts and duties as said council shall from timé to time direct and prescribe.”

It is apparent from the law quoted that the city marshal is essentially a police officer, being required to perform the •duties and functions invariably required of such officers. The fact that he is incidentally clothed with the powers of a .constable does not negative the fact that he is a policeman. It is made his special duty by the charter to enforce the or.dinanees, orders, and resolutions of the city council, and to perform such other duties as the council may direct. To •say that an officer clothed with such powers is not a member of the police force of the city would be contrary to our notion of what the functions of a police-officer really are.

Sec. 959 — 40, Stats. (Laws of 1907, ch. 61), provides for the appointment of a board of police and fire commission.•ers' in all cities of the second and third class however incorporated, and sec. 959 — 41 vests in such board the power to appoint a chief of police. The city of Janesville is a city -of the third class, so the act applies thereto.

See. 959 — II further provides that “no person shall be appointed to any position either on the police force or in the fire department in any such city except with the approval of such board.” If it be conceded that the common council, rather than the board of police and fire commissioners, might still select the marshal, the selection would not become effective until approved by such board. We think it is clear that the marshal of the city occupies a position on its police force, and, if he does, he could not be legally elected or appointed to the office without the concurrence of the aforesaid board. The appellant, therefore, fails to shown that he was duly elected or appointed to the office of city marshal.

There remains to be considered the question whether so much of sec. 959 — II as confers upon the board of police and fire commissioners the power to appoint a chief of police took away from the common council the power to appoint a city marshal. In a number of cities of the second and third class operating under special charters, the chief officer of police is designated “city marshal.” In a number of other such cities such officer is designated “chief of police.” Whichever designation is adopted, the powers conferred are practically the same. In but one city do both offices seem to exist. The general charter law (sec. 925 — 259, Stats. 1898) provides: , , ,,

“The city marshal shall be known as such or as captain or chief of police, in the discretion of the council, and shall have command of the police force of the city under the direction of the mayor.”

This language indicates that the legislative thought was that the terms “marshal,” “chief of police,” and “captain of police” were synonymous, and each city might exercise its taste in christening a singlé officer any one of three distinct names, the powers and duties of the officer exercising the functions of the office being the same no matter how designated. Secs. 959 — 10 et seq. were intended to place the appointment of firemen and policemen under civil service rules, and no reason is apparent why such rules should be applied to the appointment of a chief of police and not to the appointment of a city marshal; and it is entirely reasonable to suppose that the legislature used the term “chief of police” in sec. 959 — 41, Stats. (Laws of 1907, ch. 61), in the sense of chief officer of police, or active head of the police department, rather than in a more restrictive sense, by which it might he -limited to an officer technically designated “chief of police.” We think the language of the statute may be so construed without doing violence to the letter thereof, and that such construction effectuates the manifest purpose the legislature had in view in enacting the law.'

By the Court.: — Judgment affirmed.