109 P. 710 | Mont. | 1910
delivered the opinion of the court.
On May 6, 1907, the so-called “Metropolitan Police Law” (Article VI, Chapter III, sections 3304-3317, Revised Codes [Chapter 136, Laws 10th Leg. Sess.]) went into force and effect. On May 8, 1907, the Honorable Joseph Corby, then mayor of Butte, a city of the first class, “nominated and appointed,” by a writing filed in the office of the city clerk, as members of the Examining and Trial Board of that city, Messrs. George C. Fitschen, Thomas Driscoll and Harry Blumkin, who each took the oath and assumed to enter upon the exercise of the duties of his office. Subsequently Fitschen died, and Harry Sultzer was nominated in his place. As Sultzer’s status is the same as was that of his predecessor, we shall not differentiate between the two in our consideration of the case, but shall treat the board as originally constituted.
On May 13, 1907, the Examining and Trial Board notified the mayor in writing that the relator had been examined and placed upon the eligible list of applicants for appointment to the police department, and, further, that he had been examined by the board as an applicant for the position of captain of police. On the same day the mayor in writing “appointed” the relator as captain of police and notified the board, also in writing, that he had made such appointment. The relator on the same day filed his bond and oath of office. On May 22, 1907, according to the records of the city council, the mayor presented to the council
On May 3, 1909, the Honorable Charles P. Nevin became the mayor of Butte. On May 19, 1909, charges were filed against the relator, and he was suspended from office by Mayor Nevin until the charges were disposed of. The charges were sustained by an Examining and Trial Board, theretofore nominated by
3. It is contended by counsel for the respondents that by virtue of the foregoing facts the gentlemen appointed by Mayor Corby as members of the Examining and Trial Board constituted a de facto board, and as such their acts cannot be successfully questioned in this proceeding. It is claimed that they were in actual possession, discharging the duties of the office, under color of title and by public acquiescence.
The law provides that there shall be in every city and town of this state a police department, which shall be organized, managed and controlled as in the Act provided. (Revised Codes, sec. 3304.) Also, that in cities of the first class the mayor shall nominate, and, with the consent of the council, appoint three residents of such city, who shall constitute a board to be. known by the name of the “Examining and Trial Board of the Police Department.” The council of any town or city, other than a city of the first class, may provide by ordinance for such a board in such town or city. (Revised Codes, sec. 3307.) It will therefore be observed that as to cities of the first class the law is mandatory, and, as to other cities and towns, it is permissive only. When this law went into effect, it undoubtedly became
It is most earnestly contended by the learned counsel for the appellant that the office of member of the Examining and Trial Board has no existence until the mayor nominates and the council confirms. Not so. The office in cities of the first class is created by the law itself. It is commanded, in effect, that there shall be such a board. The mayor is required to nominate its members. The language employed has the same force and effect in this statute as the words “there is hereby created” would have. {People v. Addison, 10 Cal. 1.) The mandatory provision for filling the offices in cities of the first class would be rendered nugatory by a construction of the law which would give to the mayor or council the option of creating or not creating the board. The intention of the legislature in this regard is plainly evidenced by the fact that in cities and towns, other than cities of the first class, it in terms clothed the council with power to exercise its own judgment as to whether or not an Examining and Trial Board shall be created. Therefore the office of member of the Examining and Trial Board of the police department of the city of Butte actually existed on May 8, 1907. The office, having been newly created, became ipso facto vacant in its creation. (In re Fourth Judicial District, 4 Wyo. 133, 32 Pac. 850-854; State ex rel. Smith v. Askew, 48 Ark. 82, 2 S. W. 349; Meehem’s Public Offices and Officers, sec. 132.) “There is no technical nor peculiar meaning to the word ‘vacant.’ * * *
It means empty, unoccupied; as applied to an office, without an incumbent. There is no basis for the distinction that it applies only to offices vacated by death, resignation, or other
It was the duty of the mayor within a reasonable time after the vacancies occurred to nominate three qualified citizens to fill the offices. This he did by designating Messrs. Fitschen, Driscoll and Blumkin as his choice for the places. He purported to appoint them to fill the vacant offices. They qualified by taking the oath of office, and proceeded to exercise the duties •of their positions. On May 13, 1907, the relator took the examination before this board, and was placed upon the eligible list. He was immediately appointed by the mayor .as captain .of police, for a probationary period. Nine days later, to-wit, •on May 22, the nominations to the Examining and Trial Board were presented to the council, voted upon, and not concurred in. It is now strenuously urged upon this court that all acts of this board were null and void, for the reason that its members had not been confirmed by the council. Mr. Meehem in his treatise, heretofore cited, says at page 60, section 124: “Where the authority to make appointments can be exercised only by and with the consent and approval of the senate or other similar body, its exercise has no effect unless such consent or approval be given.” No cases are cited in support of the text; but we are inclined to the opinion that in a general way it correctly ■states the law. (See 23 Am. & Eng. Ency. of Law, 2d ed., 346; 29 Cyc. 1372.) We shall assume, therefore, for the purposes of this case, that Mayor Corby’s nominees were not de jure officers. It is contended by the appellant that the mayor is not vested with the power of appointment at all, but only with the right to nominate; and it is. argued that without the consent of the ■council no appointment is made. The mayor’s act of selecting the nominees is, however, a most important one, and, when it is concurred in by the council, a de jure officer is created. Therefore the mayor’s act of nomination becomes a part of the joint act of appointment. Our decision that Messrs. Fitschen,
The rights of the people are paramount to those of the mayor and council. They should, of course, be able to agree upon appointments. In order to do this, in the case at bar, one or the other must have given way. Both refused to do so. The council continued to reject the mayor’s appointments, and the mayor as industriously reappointed the same men. But counsel say: ‘ ‘ The pretended appointment of such persons by the mayor to constitute the members of the Examining and Trial Board the day after their rejection by the city council was a bold usurpation of power on the part of the mayor, and had no warrant in law, and was a patent evasion of the plain requirement of the Act relating to the appointment of an Examining and Trial Board.” It is not always easy to determine where the blame lies. Fortunately courts are not called upon to do so. Even though it be conceded that the mayor might have presented other names to the council, such concession does not assist the appellant. Perhaps the council would have refused to confirm anyone who was appointed by Mayor Corby, though new appointments were made at every meeting. Is the law nullified because of such deadlock? Not at all. The persons appointed were de facto officers, and as such their acts were not void.
One of the rules of the English common law was to the effect that the acts of one who, although not the holder of a legal office, was actually in possession of it under some color of title or under such conditions as indicated the acquiescence of the public in his action, could not be impeached in any suit to which such person was not a party. Such a person was called a de facto officer. This principle has been incorporated into the common law of the United States. (29 Cyc. 1389.) In the ease ■of People v. Roberts, 6 Cal. 214, it was held that, though the appointment of a sheriff by a county judge was void, yet the acts of such sheriff, as a de facto officer, were good. (See, also, Woodward v. Fruitvale Sanitary District, 99 Cal. 554, 34 Pac. 239.)
This court in the case of Carland v. Commissioners of Custer County, 5 Mont. 579, 6 Pac. 24, through Mr. Justice Galbraith, said: “Persons in the actual and unobstructed exercise of office must be held to be legal officers except in proceedings where their official character is the issue to be tried as against themselves.” This court, also, in Parks, Petitioner for Writ of Habeas Corpus, 3 Mont. 426, in an opinion by Mr. Chief Justice Wade, after a review of the authorities, concluded that the acts of a de facto police magistrate could not be questioned in a collateral proceeding. (See, also, State ex rel. Bickford v. Cook, 17 Mont. 529, 43 Pac. 928.)
It is a part of the judicial history of this state that Charles R. Pollard, Esq., was appointed a justice of this court by President Cleveland about the year 1886. He was- never confirmed by the senate of the United States; yet Volume 6 of the-Montana Reports discloses the fact that he took part in the-deliberations of the court. The opinion in- the case of Miles v. Edwards, 6 Mont. 180, 9 Pac. 814, was prepared by him, and no one has ever doubted that his acts as a de facto judge were-legal.
2. Counsel, however, contend that the selection of the relator-as captain of police for a probationary term before the names of the members of the Examining and Trial Board had been submitted to the council invalidated his appointment. We think
3. Counsel for the appellant insist that incompetent testimony was admitted. We find no prejudicial error in this’regard. The facts are mostly of record, and are practically undisputed.
Let the judgment and order of the district court be affirmed.
Affirmed.