140 P. 95 | Mont. | 1914
delivered the opinion of the court..
This proceeding in mandamus was instituted by Michael J. Dwyer to compel the mayor of Butte to restore him to the office of lieutenant of police in the police department of the city of Butte. From a judgment awarding the peremptory writ, this appeal is prosecuted. To avoid confusion of terms, the relator in the lower court will be designated plaintiff, and the-mayor defendant.
1. A motion to dismiss the appeal has been interposed upon
2. Contention is made that the affidavit for the writ does not state a cause of action, in that' it does not allege the existence
To prove the existence of the office, plaintiff offered in evi
3. With these preliminary matters aside, the one question presented for our determination is: Was plaintiff entitled to be
Our Metropolitan Police Law (sections 3304^3317, Rev. Codes) contemplates that in addition to the office of chief of police, which the Act itself creates, there shall be different grades and other offices established by the city council (section 3314), or by the mayor in the event the council fails to act (section 3305). For instance, in section 3308 it is provided: “The mayor and (or) the chief of police subject to the approval of the mayor shall have the power to suspend a policeman, or any officer under the chief, for a period of not exceeding ten days in any one month without any hearing or trial.” The city of Butte by ordinance provided for the organization of its police department in conformity with that Act. Under Ordinance No. 825 above, the department comprises one chief of police, one captain, one lieutenant, two sergeants, three jailers, three patrol drivers, one detective, and such number of patrolmen as may be required. The Act also contemplates that charges against any officer in the department shall be heard by the examining and trial board (section 3309), and that reduction in rank or grade may be imposed as punishment in case the officer, other than the chief, is found guilty (section 3308).
The civil service principle is the foundation of the law. The fundamental idea upon which the system rests is that appoint
The record before us discloses that when this plaintiff was retired to the eligible list, and the office of lieutenant of police became vacant, the defendant immediately appointed another to fill the office. This- was a clear violation of the civil service principle, and did not operate to deprive the plaintiff of his office.
4. It is insisted that whatever right plaintiff may have had to be restored to the office he seeks he waived by accepting an incompatible office. The record discloses that some time after
We find no error in the record. The motion to dismiss the appeal is overruled and the judgment is affirmed.
Affirmed.