State ex rel. McDonald v. Getchell

152 P. 480 | Mont. | 1915

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The city of Missoula is a municipal corporation organized under the' laws of this state. It is, and for several years has been, a city of the first class. It was governed by a mayor and board of aldermen until 1911, when it adopted the commission plan of government and elected a mayor and two commissioners, who since then have constituted the governing body of the city. In 1910 P. J. McDonald successfully passed an examination before the examining and trial board of the police department of the city, received his appointment as policeman for the probationary term, qualified and discharged the duties of his office during such term, and was then appointed permanently — all under the Metropolitan Police Law in force in this state and obligatory upon a city of the class to which Missoula belongs. He qualified for the permanent appointment and served continuously as policeman until about May 27, 1914, when he was dismissed without a trial. He instituted this proceeding in mandamus to compel his reinstatement, and prevailed in the district court. The defendants have appealed from the judgment ana an order denying them a new trial.

The case as presented to us is extraordinary in some respects. [1] The defendants did not attempt to excuse or justify their action in removing the relator from his office, either in their pleading or upon the trial. With the exception of certain admissions, their answer is substantially a general denial. Although they constitute the governing body of the city and admit that defendant Getchell is mayor, that Hudson and Houston are commissioners, and that the three constitute the council for the' city, in their answer they deny under oath that Missoula is a municipal corporation, that it is a city of the first class, that it was ever controlled by the aldermanic form of government, or that it is now operating under the commission plan. The only evidence offered by the city at the hearing consisted of Ordinance 148 and a resolution of the council adopted May 27, 1914. The ordinance, which abolished the office of city detective and special policeman, was approved in 1906, four years before the relator was first appointed to office. The evidence was wholly immaterial, since' it did not relate to the office to which relator seeks reinstatement.

The resolution referred to directed the commissioner of public safety and charity to reduce the police force to the lowest possible working number consistent with the maintenance of peace and good order; but it was not followed by any evidence that relator was discharged or relegated to the eligible list in pursuance of the policy indicated in the resolution. On the contrary, the evidence discloses that as many policemen were employed after as before the date of relator’s discharge, that the relator was one of the oldest policemen in point of service, and that several whose commissions were subsequent to his, were retained in the city’s police service. We have for consideration a meritorious case in which relator demonstrated that he was ousted from office to which he was entitled, and that his discharge was effected in flagrant violation of the Metropolitan Police Law. The judgment restoring him is manifestly just; and since it is inconceivable under the circumstances that any substantial rights of defendants have been prejudicially affected, the errors committed upon the trial, if such there were, will be disregarded. Section 6593, Revised Codes, provides: “The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not .affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect. ’ ’

The judgment and order are affirmed.

Affirmed.

'Mr. Cheep Justice Brantly and Mr. Justice Banner concur.