99 P. 940 | Mont. | 1908
delivered the opinion of the court.
This is an appeal from a judgment of the district court of Lewis and Clark county entered in favor of the respondent after the court had sustained a general demurrer to the affidavit for a writ of mandate, and had granted a motion to quash an alternative writ theretofore issued. The affidavit filed by the relator alleges, in substance, as follows: Since May 1, 1908, the respondent, Frank J. Edwards, has been, and still is, mayor of the city of Helena, a city of the first' class. The relator, Quintín, was a patrolman of the city at the time of the passage of Chapter 136, page 344, Laws of 1907, commonly called the “Police Commission Bill,” approved March 7, 1907. On July 6, 1907, the then mayor appointed relator, wffio was duly qualified, to the position of patrolman on the police force for the probationary term of six months. Thereafter relator successfully passed examination by the “examining and trial board of the police department,” and received from it a certificate that he was qualified for appointment upon the police force, and on March 23, 1908, the then mayor duly appointed him to the position or place of policeman or patrolman to hold during good behavior or until by age or disease he should become permanently incapacitated; whereupon he at once qualified and took the oath required of members of the police force, and ever since has been, and still is, a member of the force, to-wit, a policeman or patrolman, and has not become incapacitated and no charge whatsoever has been brought against him. The respondent mayor did on
In the brief of counsel for the appellant the statement is made that three ultimate questions are presented: First, whether or not the police commission bill is altogether null because repugnant to the state Constitution; second, if it is not void in its entirety, whether or not it is void in so far as it provides for the holding of positions of policemen for more than two years; and, third, if the bill is invalid in the respect last mentioned, whether or not that part of the bill which forbids the dismissal, without charges or trial, of policemen appointed to hold during good behavior until incapacitated, is effective to prevent, within two years next following such appointment, dismissal by the mayor without charges or trial. The so-called police commission bill provides for a police department in every city and town within Montana, such department to be under the charge and supervision of the mayor, who shall appoint all the members and officers. The members of the. force shall be appointed for the probationary term of six months, and the mayor may then appoint them to hold during good behavior or until by age or disease they become permanently incapacitated. In cities of the first class the mayor shall appoint three residents as a board to be known as “the examining and trial board of the police department,” to hold office for two years. Each applicant for a position on the force shall first undergo an examination, and, if he receives a certificate from the board, he is eligible to appointment for a probationary period of six months and may thereafter he appointed to hold during good behavior and
It was contended in the court below by respondent, and is contended here, that the police commission bill is unconstitutional, in that it is in contravention of the following sections of the Constitution of the state, viz.: Section 6 of Article XVI, section 31 of Article V, and section 36 of Article V. Section 31 of Article V, above referred to, reads as follows: “Except as otherwise provided in this Constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emolument after his election or appointment; provided, that this shall not be construed to forbid the legislative assembly from fixing the salaries or emoluments of those officers first elected or appointed under this Constitution, where such salaries or emoluments are not fixed by this Constitution.” This section has no application to the case at bar. While the relator had acted as a patrolman prior to his appointment, under the new law his term of office, if we may use the expression at this, point of the inquiry, was not extended. He was obliged to jpass the examination, serve the probationary term, and receive a new
Section 36 of Article Y of the Constitution reads as follows: “The legislative assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes, or to perform any municipal functions whatever.”
In its decision entitled “In re Senate Bill Providing for a Board of Public Works in the City of Denver,” 12 Colo. 188,. 21 Pac. 481, the supreme court of Colorado, after quoting a constitutional provision relating to “special commissions,” similar to our section 36 of Article Y, said: “It is obvious at a glance that, if this clause controls the legislative discretion in the premises, it is because the board of public works, as constituted by the Act under consideration, is a ‘special commission,’ within the meaning of that phrase as it was understood by the framers of the Constitution. This we do not think, for the following, among other, reasons: The board in question is made a department or branch of the city government. Its power to invest money in public improvements is for the present confined to the expenditure of $3,000,000, but its authority is not limited to this expenditure, and upon making the same its existence does not terminate. It is, like the board of health, fire, and other departments, permanent in its nature, being charged with certain continuous duties and vested with certain perpetual powers. These duties and powers are extensive, and in some respects unusual, but they relate exclusively to municipal affairs, and are essentially functions of the municipal government. The board has no separate existence, office or authority. It is an administrative agency or instrument, employed exclusively in the control and management of the city’s improvements and other interests. In no material respect, save as to the scope and extent of its duties and powers, does it essentially
In the ease of Arnett v. State ex rel. Donohue, 168 Ind. 180. 80 N. E. 153, 8 L. R. A., n. s., 1192, the supreme court of Indiana said: “The essential elements of what is known as the ‘metropolitan police system’ in the government of municipalities have been so often vindicated as against constitutional objection that the question should now be considered at rest.”
The bill we have under consideration is not open to many of the objections considered by the Colorado court. In the first place, no extraordinary powers are conferred upon the members of the examining and trial board. Their duties consist merely in designating certain applicants as having the necessary qualifications to act as policemen and in trying charges against members. It is expressly provided that the mayor shall have charge of, and supervision over, the police department, and shall ap
Section 6 of Article XYI provides: “The legislative assembly may provide for the election or appointment of such other county, township, precinct and municipal officers as public convenience may require and their terms of office shall be as prescribed by law, not in any ease to exceed two years, except as in this Constitution otherwise provided.” Respondent contends that a policeman is a municipal officer, and that, inasmuch as section 3 of the police commission bill declares that he shall hold office during good behavior, the whole bill is void. The position of the relator’s counsel is found in these suggestions: (a) That a policeman is a state officer and not a municipal officer; (b) that, if he is not a state officer, he is simply a municipal employee, as distinguished from a municipal officer; and (c) that, if he is a municipal officer, the bill is not entirely void, but only that portion thereof fixing the duration of the term is unconstitutional, and the balance is good. We shall take these matters up in the foregoing order.
Is a policeman a state officer? The ease of Burch v. Hardwicke, 30 Gratt. 24, 32 Am. Rep. 640, decided by the supreme court of Virginia in 1878, is confidently relied upon by the relator. In that case the mayor had removed the chief of police from office. The Constitution provided that “the mayor shall see that the duties of the various city officers are faithfully performed. He shall have power to investigate their act’s, have access to all books and documents in their offices and may examine them and their subordinates on oath. He shall have power to suspend and remove such officers, whether they be elected or appointed,” etc. The charter of the city of Lynch-burg provided for a police department to be under the control
The supreme judicial court of Massachusetts, in the case of Buttrick v. City of Lowell, 1 Allen, 172, 79 Am. Dec. 721, said: “Police officers can in no sense be regarded as agents or servants of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the Legislature as a convenient mode of exercising a function of government; but this does not render them liable for their unlawful and negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar
In the case of Everill v. Swan, 17 Utah, 514, 55 Pac. 68, the supreme court of Utah said: “Police officers are not mere servants of the municipal corporation. They are appointed under the laws of the state, by a board created for that purpose, to perform public service. While the jurisdiction of such officers is limited by certain boundaries, their service is not alone of local or colórate interest, but is important to the state at large as well, for the state has an interest in the peace and good order of each of its component parts. The duties which have been imposed upon them by the laws of the state they are bound to perform, independently of the corporation, such duties being of a public nature. The fact that the appointment of such officers was devolved upon the city or upon a board by the legislature does not deprive them of the character of public servants. Their appointment was so lodged simply as a convenient way to exercise a function of government. They are not therefore to be regarded as the mere agents or servants of the municipality, but as public or state officers.”
In so far as these cases declare that policemen are state officers, without in any manner limiting or explaining the expression, we do not agree with them. Policemen are certainly not state officers in the same sense that the attorney general or the state treasurer are state officers. The lay mind would rebel at such a conclusion, and no refinement of reasoning could make it logical. We think the courts whose decisions we have just referred to were unfortunate in the use of the term “state officer,” and that they intended simply to hold that a policeman is a public officer, in the sense that he has certain public duties to perform other than those, strictly pertaining to the government of the municipality. With this latter determination we agree. If a policeman is strictly a state officer, the only way in which he could be removed would be by impeachment in accordance with the provisions of section 17 of Article
-The Constitution provides (Article VII, see. 1) that the executive department of the state shall consist of the governor, lieutenant-governor, secretary of state, attorney general, state treasurer, state auditor, and superintendent of public instruction, each of whom shall hold his office for four years or until his successor is elected and qualified. Provision is also made (section 8) for the appointment by the governor of a state examiner, and also (section 7) for the nomination, and, by and with the consent of the senate, appointment, of all officers whose offices are established by the Constitution or which may be created by law, and whose appointment or election is not otherwise provided for. Except as .provided in the foregoing sections, and as hereafter' noted, we find in the Constitution no limitation upon the duration of the term of office of a state officer, and our attention has been called to none. The term of office of a justice of this court is six years (section 7, Article VIII, Constitution); of the clerk six years (section 9); of a district judge four years (section 12) ; of the clerk of the district court four years (section 18); of a county attorney two years (section 19); of a justice of the peace two years (section 20); of a county commissioner six years (section 4, Article XVI); of a county clerk, sheriff, treasurer, superintendent of schools, surveyor, assessor, coroner, and public administrator, two years (section 5); and of the commissioner of agriculture, labor, and industry, four years (section 1, Article XVIII). State senators are elected for four years, and representatives for two years (section 2, Article V). The foregoing, we think, includes all of the officers, state, county, and township, whose terms are fixed by the Constitution. Although six years is the longest term of office mentioned in the Constitution, we find no express declaration that a longer term may not be fixed by the legislature. The terms of the members of the first state board of education were fixed at two, three, four, and five years, respectively, and those of the railroad commissioners at
Policemen in this state all hold their places under city or town governments. We find no mention of the office in the Constitution. We have nó state police as such. Respondent contends that a policeman is strictly a municipal officer, within the meaning of section 6, Article XVI, of the Constitution, supra; or, at any rate, that the office of policeman falls within the provisions of that section. There can be no doubt that a policeman is an “officer” not only within the ordinary meaning of the term in the street, but strictly and technically speaking also. Being attached to the municipality, it is within common knowledge that he has certain local duties to perform under the ordinances of all cities. A reference to any boob of city ordinances will disclose the nature of such duties. But, in addition to these purely local duties, he has others, and these others are of a public and general nature pertaining to the observance and enforcement of the general laws of the state, principally the penal and criminal laws. We note a few instances: (a) A peace officer is a sheriff of a county, or his deputy, or a constable, marshal, or policeman of a township, city, or town. (Revised Codes, sec. 8924.) (b) Public offenses may be prevented by the intervention of the officers of justice: “ “ * * (2) By forming a police in cities and towns and by requiring their attendance in exposed places.” (Revised Codes, see. 8939.) (c) It is the duty of every police officer to prosecute persons who are offenders against the law, (Revised Codes, sec. 8426.) (d) Every police officer who shall refuse or neglect to perform any of the duties imposed upon him by the provisions of the chapter of the Penal Code, entitled ‘ ‘ Gaming, ’1 is guilty of a misdemeanor. (Revised Codes, sec. 8428.) (e) It is the duty of all peace officers to prosecute or cause to be prosecuted all persons guilty of any violation of the so-called “wineroom law.” (Revised Codes, sec. 8390.) (f) A warrant issued by a justice of the
We are not permitted to declare this law unconstitutional if we can reconcile the conflicting statutes and decisions, and thus avoid such determination. “It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.” (Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606; Anderson v. Ritterbusch (Okl.), 98 Pac. 1002.) Perhaps it is not out of place to notice at this time the argument of the appellant that policemen are mere employees or servants of the city. We cannot agree with this contention. To so hold would strip them as officers ’of all protection under the laws, and a result so grave should.be avoided, if possible. Section 8180 of the Revised Codes provides that any person who attempts by means of any threat or violence to deter or
But it is said that because the legislature in 1899 passed the law creating fire departments in cities and towns (see Laws 1899, page 73), and provided therein that firemen should hold their places during good behavior, and should not be deemed officers of the municipal corporation, and thereafter, in 1907, prescribed the same tenure of office for policemen, it must be presumed to have intended to declare that policemen should not be deemed officers of the municipality. There are two answers to this suggestion: (1) That the duties of firemen are purely local; and (2) that the legislature, having once had its attention called to the matter of the legal status of such persons, could have declared that policemen were not municipal officers, had it so desired, assuming, in passing, that it had the power to do so without taking away their public functions. It seems to us that the fact that the legislature failed to declare that policemen should not be deemed officers of the municipal corporation is significant of the intention of that body to regard them as officers of some sort. ¥e think policemen are not mere servants or employees of a city.
To recur, then, to the meaning of the words “municipal officers, ’ ’ found in section 6 of Article XYI of the Constitution. Section 3216 of the Revised Codes reads as follows: “The officers of a city of the first class consist of one mayor, two aldermen from each ward, one police judge, one city treasurer, who may be ex officio tax collector, who must be elected by the qualified electors of the city as hereinafter provided. There may also be appointed by the mayor, with the advice and consent of the council, one city attorney, one city clerk, one chief of police, one assessor, one street commissioner, one city jailer, one city sur
The term “municipal officers” used in the Constitution means “city officers.” The word “municipal” has its origin in the idea of a free town or city, and in its popular use is applied to cities, although in its general meaning it embodies the idea of local self-government, as distinguished from centralized government. “ ‘Municipal’ may either refer to a town or a city.” (Sessions v. State, 115 Ga. 18, 41 S. E. 259. See, also, 5 Words and Phrases Judicially Defined, p. 4618.) In the case of Lebcher v. Commissioners of Custer County, 9 Mont. 315, 23 Pac. 713, this court, speaking through the late Mr. Justice De Witt, treated a county as a municipal corporation. Section 3806 of the Revised Codes provides that public corporations are formed or organized for the government of a portion of the state. But section 6 of Article XVI of the Constitution expressly mentions “county” as well as “municipal” officers, so
The only officers of a city of the first class actually created by the legislature are the mayor, two aldermen from each ward, a police judge, and a city treasurer. This is apparent from section 3220, Revised Codes, which provides that the city council has power to abolish any office the appointment to which is made by the mayor with the advice and consent of the council, and discharge any officer so appointed, “but no office created by this title must be abolished by the council.” The city council may by ordinance consolidate any of the officers the appointment to which is made by the mayor with the advice and consent of the council, and may require any of the elected officers to perform any of the duties of an appointed officer whose office has been abolished. It will be seen from the foregoing that all of the offices which are to be filled by the mayor with the advice and consent of the council may be abolished, and the duties appertaining thereto added to those of the elective officers. But the elected officers stand in a class by themselves, and cannot be in any way affected by any action of the council.
But assuming, without deciding, that all of the officers, elective and appointive, mentioned in section 3216, are city officers, let us consider what those officers are. They are (1) the mayor, aldermen, police judge and city treasurer; and (2) such other officers as are appointed by the mayor, with the advice and consent of the council. An examination of the police commission bill discloses that policemen are to be appointed by the mayor from the eligible list without consulting the council; so that a policeman falls within neither class. We have not overlooked section 3258, Revised Codes, which reads as follows: “The duties and compensation of the street commissioners, chief of the fire department, city surveyor and other city officers not provided in this title may be prescribed by ordinance.” But this somewhat loose expression does not alter our opinion as to the meaning of section 6, Article XVI of the Constitution, and section 3216, Revised Codes, as applied to policemen, in view
Another contention of the respondent is that section 14 of the police commission bill reserves to the mayor the right given him under subdivision 2, of section 4781, Political Code, to suspend, and, with the consent of the council, to remove, the relator from his place as policeman. Section 14 reads as follows: “All Acts and parts of Acts inconsistent with the provisions of this Act are hereby repealed, but nothing herein contained shall abridge any of the powers possessed by the mayor of any city or town under any other provision of law or any ordinance.” To quote from the brief of respondent’s counsel: “The very essence of this entire police bill, its design, its extent, and its purpose was to afford a tenure for life.” And from the relator’s brief we quote this: “The purpose of the bill was to put members of the police force under civil service rules, and insure them, when once finally appointed, a continuance in their positions during good behavior or until by age or disease they become permanently incapacitated to discharge
It is said that the affidavit fails to allege that the council had not by ordinance abolished the office, but the allegation of the affidavit is that the relator was discharged by the respondent as mayor. This disposes of all questions properly presented for consideration.
The judgment of the district court of Lewis and Clark county is reversed, and the cause is remanded, with directions to overrule the demurrer to the affidavit or so-called complaint, and to vacate the order quashing the alternative writ of mandate and proceed in accordance with the views herein expressed.
Reversed and remanded.
