State ex rel. Quintin v. Edwards, 106 P. 695

106 P. 695 | Mont. | 1910

Lead Opinion

MR. CHIEF JUSTICE BRANTLT

delivered the opinion of the court.

Application for a peremptory writ of mandamus to the defendant, as mayor of the city of Helena, to compel him to restore the relator to his office as policeman or patrolman upon the police force of the city, from which it is alleged he was unlawfully removed by the defendant. Upon an appeal from a judgment entered upon demurrer to the application and upon motion to quash the alternative writ, it was held that facts sufficient were stated to make a prima facie case requiring the defendant to answer. (38 Mont. 250, 99 Pae. 940.) The defendant then filed his answer denying all of relator’s allegations, except that Helena is a city of the first class; that defendant has since May 4, 1908, been its mayor; that relator was a patrolman of the city at the time alleged; and that he is qualified to hold the office. He then alleges affirmatively that on May 4, 1908, Ordinance No. 736 was enacted by the city council and approved by himself, providing, among other things, “that until further order of the council the number of policemen of this city, other than officers named in the last section [section 1], shall be six,” and “that under and by virtue of such ordinance the number of policemen or patrolmen of said city was reduced from nine to six, and the office or position of relator was abolished, and in pursuance of said ordinance said relator, together with other policemen or patrolmen, was notified by the mayor of said city and accordingly dismissed.” The court overruled the relator’s motion to strike out these affirmative allegations as irrelevant, immaterial, and impertinent. Thereafter the defendant was permitted to amend the answer by inserting allegations to the following effect: That the city of Helena is, and since the year 1893 has been, indebted in excess of three per cent of the assessed valuation of the property within its limits; that the funds derived from taxation were not enough to meet the expense of the police department with nine policemen or patrolmen; and that for economic reasons it was necessary to reduce the number from nine to six. A motion to strike out this amendment, as irrelevant and immaterial, was also denied. The reply of relator denies that under Ordinance-736, or otherwise or at all, the number of policemen or patrolmen of the city was reduced from nine to six, or that the office-of the relator was thereby abolished, or that in pursuance thereof' the relator, either alone or with the other persons, was dismissed. It alleges on information and belief that the ordinance did not, and does not, empower or authorize the mayor or chief of police, or both of them together, to dismiss the relator, and that it was and is, as to relator, null and void. It is denied that the ordinance was enacted for economic reasons. Allegations to the effect that Ordinance No. 736, with other ordinances referred to, were enacted as the result of a conspiracy entered into by the mayor and the city council for the sole purpose of discharging the relator and others from the police force and substituting other appointees in their places, were, upon motion of defendant, stricken out.

From the record we gather the following facts: The defendant went into office on May 4, 1908. During the term of his predecessor, in pursuance of the statute (Chapter 136, Session Laws of 1907; Revised Codes, secs. 3304-3317), the police force of the city had been organized under section 50 of the Revised Ordinances of the city, providing that the police force should consist of one chief of police, one police captain, one police sergeant, one day jailer, one night jailer, and such number of policemen or patrolmen as might be necessary to keep the number up to-that established from time to time by action of the council, all to hold office during good behavior or until incapacitated by age or disease. By section 51 it was declared that the number of policemen, other than officers mentioned in section 50, should be nine. The order of the mayor appointing the relator designated him as “patrolman.” In an ordinance passed and approved on April 20, 1908, fixing the salaries of all officers and making appropriations for the year beginning with the term of dhe defendant, provision was made for nine policemen or patrolmen. The salary of each was fixed at $90 per month, making a dotal appropriation for this purpose of $9,720. A separate appropriation was made for the salaries of the police captain and •chief of police. A special appropriation of $1,000 was made for special police officers. On May 4, 1908, Ordinance No. 736, referred to in defendant’s answer, was enacted, amending sections 50 and 51 of the Revised Ordinances, supra, by omitting therefrom provision for a police captain, and providing that until further order of the council the number of policemen should '.be six. On June 3, the ordinance having become operative ¡under section 3268 of the Revised Codes, the relator with two •other policemen or patrolmen and the police captain were at ■once, by direction of the mayor, discharged from the force by the chief of police. On June 9, 1908, the council enacted Ordinance No. 739, which repealed Ordinance No. 736. Immediately after the passage of Ordinance No. 739, and at the same ¡session, the council enacted Ordinance No. 740, amending sections 50 and 51, Revised Ordinances, supra, by fixing the number •of policemen at seven. In the ordinance making the annual .appropriations for the year 1909, provision was made for six policemen or patrolmen, the salary of each being fixed at $90 per month, as before. Provision was also made for special police •officers to the increased amount of $3,240. The apparent reduction in the expenses of the city government effected by the ■course thus pursued, including the salary of the police captain, not provided for because of the discharge of this officer, was $1,920. But notwithstanding the number of the force was thus reduced from nine to seven, from and after June 3, 1908, ■and up to the time of the trial, there had been in the employment ■of the city at no time fewer than ten policemen in active service. Six of them had been regularly appointed under the previous administration. The others were put upon the force by the chief of police with consent of the mayor, and apparently with the acquiescence of the council, but without formal appointment by anyone. Some of them were selected from the eligible list, and others not. They were paid by the city, from month to month, just as were the six having permanent appointments. It thus appears that the actual net reduction of the expense to the city for this service was merely nominal, instead of being $1,920, the difference in the amounts appropriated for the years 1908 and 1909, respectively. At the time these acts were done, the city was indebted to an amount in excess of the constitutional limit of three per cent; but it does not appear that the expenditures for compensation of policemen, including that of special officers, were ever in excess of the amount of the police fund derived from the levy of a special tax and from other sources.

From these facts, which are not disputed, the trial court concluded that the relator was entitled to the relief demanded, and directed judgment to be entered awarding the writ as prayed. The defendant has appealed from the judgment and an order denying his motion for a new trial. In discussing the assignments of error, we more conveniently take them up in the order in which they are noticed in the brief of counsel for the relator.

1. "We notice, first, the contention that the court erred in failing to make special findings, as requested by the defendant. There is no merit in the contention. In order to render it the Imperative duty of the trial court to make special findings, it is incumbent upon a party, at the conclusion of the evidence and argument in the cause, to make request in writing for findings, and to have the request entered in the minutes of the court. If this is not done, a judgment may not be reversed for want of findings. (Revised Codes, sec. 6766.) Counsel for defendant did not make any request upon the submission of this cause. The evidence and argument were concluded on April 29, 1909. The cause was then taken under advisement. At the request of the trial judge, counsel for both parties thereafter filed briefs, defendant’s counsel on April 29, and relator’s counsel on May 1. On May 11 defendant’s counsel notified the judge by telephone that he had intended to file a reply brief, but had not been able to do so; that he was preparing a request for findings which he desired to have made; and that he would still file a brief if he could within the next few days. None was filed. Thereafter, on the same day, counsel wrote to the judge requesting him to make findings, and asking that his request be entered in the minutes. The request was thereafter entered. Under the provisions of the Code, supra, the request should have been made at the time the cause was taken under advisement. But, even if it be conceded that the cause was finally submitted upon notice to the judge that no other brief would be filed, the contention must nevertheless be overruled; for the reason that the facts were not controverted. Findings would therefore have been useless. "When this condition arises, and the evidence is of such a character as to furnish ground, for one inference only— that is, in favor of one party or the other—the case is stripped" of questions of fact, and only a question of law remains for decision. Formal findings are then not necessary, because the evidence amounts to an agreed statement of facts. (Helena Nat. Bank v. Rocky Mt. Tel. Co., 20 Mont. 379, 63 Am. St. Rep. 628, 51 Pac. 829; Murray v. Hauser, 21 Mont. 120, 53 Pac. 99.)

2. Contention is made that it appears from the evidence that the relator was appointed a patrolman, and not a policeman, and that, since a patrolman is purely a local officer, the appointment under the ordinance giving him a life tenure, as well as the ordinance providing for his appointment, is void. If this is so,, the relator is not entitled to relief, because it is apparent that, if he did not by his appointment become a member of the police force within the meaning of the statute, he was not at the time of his removal even a de facto officer, and hence the defendant does not owe him the duty to restore him; for mandamus will not go unless it appears that the relator has a clear legal right in himself to have the particular act or duty in question performed by the defendant. (State ex rel. Breen v. Toole, 32 Mont. 4, 79 Pac. 403.)

The statute in referring to the persons serving on the police force mentions them as “members” or “officers” of the police department or police force. The section of the Revised Ordinances of the city, supra, under which the police department of the city was constituted, after mentioning certain officers by ■a special title, classifies all other members as “policemen” or “patrolmen.” As noted above, the order of the mayor, appointing the members of the force designated the relator and all ■others of equal grade as “patrolmen.” In his application for the writ the relator designates himself as a “policeman or patrolman.” The argument of counsel is that the sections of the ■ordinance referred to show that the city council intended to create, and did create, the office of patrolman as well as that of policeman; that the former is distinct from the latter; that, since a patrolman has no public duties to perform under the provisions of the Revised Codes, as has a policeman, he is a local municipal officer merely; that as such he comes within the designation of “municipal officers/’ as this expression is used in section 6 of Article XYI of the Constitution; and that the ■ordinance providing for his appointment for an indefinite term, which may exceed two years, is void. In the decision upon the former appeal we held that the statute is not repugnant to this ■clause of the Constitution, because a policeman is a publie officer in that he has duties to perform, other than those pertaining to the government of the municipality for which he is acting, and after he has once been appointed he may not be suspended or removed from office, except as the statute provides. It was assumed, both by the court and the parties, though not decided, that the terms “policeman” and “patrolman” are synonymous, and, in fact, they are generally used synonymously. The word “policeman” is defined as “one of the ordinary police whose duty it usually is to patrol a certain beat for a fixed period, for the protection of property, for the arrest of offenders, and to see that the peace is kept.” (Century Dictionary.) A “patrolman” is “a member of the police force of a town or city, who patrols a certain beat; a policeman.” (Id.) The word “policeman” is used sometimes also in a generic sense, and when so used may apply properly to any member of the police force, whatever may be his grade or rank. (Words and Phrases, 5439.) In this sense it was used in the discussion in the former decision in this case, and as intended to include all members of the force having similar duties, without reference to grade or rank. So the two terms, as used in the ordinance, were evidently used as importing the same meaning. The contention of counsel is therefore overruled. •

3. It is said by counsel that the city council is vested with the implied power to abolish any office created by it, except in so far as it is expressly prohibited from doing so by some provision of the statute; that its purpose and intention in enacting Ordinance 736, supra, was to abolish the offices of police captain and of the three policemen or patrolmen whose names were dropped from the list; and hence that the relator has no cause to complain. By section 3304 of the statute every city in the state is required to have a police department. The mode by which it must be organized is pointed out in sections 3305, 3306, 3307, and 3308. Under section 3305 the mayor must make all appointments from the eligible list, and has the power to suspend or remove from office any member of the force, subject, however, to the provisions of section 3308. In so far as he is not restrained by the provisions of the Act, other laws of the state, or the city ordinances, he shall make rules and regulations for the government' and discipline of the force. The city council may by ordinance make additional regulations not inconsistent with the Act or any law of the state for the government of the police department and regulating the powers and duties of the officers and members. (Section 3314.) Under section 3308 the mayor or the chief of police, subject to his approval, may suspend any policeman for a period not exceeding ten days in any one month without trial or hearing. But the power to make permanent removals is not expressly vested in anyone, except after a hearing and conviction, upon charges in writing, preferred to the examining board. Upon a conviction, the mayor may suspend without pay for a definite time, or impose a fine, or remove, at his discretion; for section 3308 declares: “No member or officer of the police force in cities of the first class shall be discharged without a hearing or trial before said board, ’ ’ etc. This is the only provision in the statute on the subject. Neither in this nor in any of the other sections do we find the express power granted to abolish any office or to dispense entirely with the services of any officer. The’ statute authorizing the creation of municipalities is the charter of their powers; and the rule of construction applicable is that they have only such powers as are expressly conferred and' such as are necessarily implied or are indispensable in order to properly accomplish the purpose of their organization. Any fair and reasonable doubt as to the existence of any power is to: be resolved against the corporation and the power denied.. (Cooley’s Constitutional Limitations, 6th ed., p. 231; Dillon’s; Municipal Corporations, sec. 55; Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249.) “For all purposes of jurisdiction corporations are like inferior courts, and must show the power given them in every case. If this be wanting, their proceedings must be holden void whenever they come in question, even collaterally.” (Dunham v. Trustees of Rochester, 5 Cow. 465.) “Municipal by-laws_must also be in harmony with the' general laws of the state and with the provisions of the municipal charter. Whenever they come in conflict with either, the' by-laws must give way.” (Cooley’s Constitutional Limitations, 6th ed., p. 239.) The reason for the rule is that it must be presumed that the state has granted in clear and unmistakable terms all that it intended to grant at all. (Cooley’s Constitutional Limitations, p. 233.)

Applying this rule to the statute here, it would seem that in the face of the express provision found in section 3308 it was the intention of the legislature to deny the power to the' municipality to remove any member of the police force, either' by abolishing his office or otherwise, except upon conviction of a violation of his duty or for incompetency resulting from disease or advancing age. This view finds support in the purpose sought to be accomplished by the legislature in enacting the statute. This was to withdraw the police force, so far as possible, from the control of partisan political influences,, and put it under civil service rules; so that, when the members of it were once finally appointed, they might remain in office during good behavior or until they became incapacitated for service. The result sought was improvement in the service through the; experience and proficiency acquired by a long tenure in office, and by a removal of the fear, which was always present under the old statute, that the incoming of a new administration meant loss of office for every member who had not shown himself a .zealous partisan during the campaign preceding its election, or during the primaries, conventions and elections of the prevailing political party generally.

But when we come to examine the decisions touching the subject, they seem to agree generally upon the proposition that the power to abolish is necessarily implied notwithstanding the provisions referred to, because it cannot be supposed that the legislature intended that after the police force had once been created and its members finally appointed, the number so appointed must continue in office, whether the financial condition of the city or the public needs required their retention or not. It therefore seems to be the rule, as established by the decided cases, that the provision restricting the power of removal found 'in section 3308, supra, refers to removals for lapse of duty and the like, and is no restriction upon the power of the council to .abolish as many of the places or offices once provided for, as it •chooses, by reducing the number of the members on the force. 'The following cases are sufficient for illustration, both as to the point that the power to abolish is implied, and as to the point that this result is properly accomplished by an ordinance reducing the number of the police force, or by an order of the board or officer vested with the power to reduce the force: Heath v. Salt Lake City, 16 Utah, 374, 52 Pac. 602; Moores v. State, 54 Neb. 486, 74 N. W. 823; Meissner v. Boyle, 20 Utah, 316, 58 Pac. 1110; Hudson v. City of Denver, 12 Colo. 157, 20 Pac. 329; Raley v. Warrenton, 120 Ga. 365, 47 S. E. 972; Oldham v. Birmingham, 102 Ala. 357, 14 South. 793; City of Chicago v. People, 114 Ill. App. 145; Boylan v. Newark Police Commrs., 58 N. J. L. 133, 32 Atl. 78; Uffert v. Vogt, 65 N. J. L. 377, 47 Atl. 225; Magner v. St. Louis, 179 Mo. 495, 78 S. W. 782; Jones v. Willcox, 80 App. Div. 167, 80 N. Y. Supp. 420; Board etc. of Frankfort v. Brawner, 100 Ky. 166, 37 S. W. 950, 38 S. W. 497; Donaghy v. Macy, 167 Mass. 178, 45 N. E. 87; Venable v. Police Commrs., 40 Or. 458, 67 Pac. 203; Lethbridge v. Mayor etc. of New York, 133 N. Y. 232, 30 N. E. 975; People ex rel. Corrigan v. Mayor, 149 N. Y. 215, 43 N. E. 554; Fitzsimmons v. O’Neill, 214 Ill. 494, 73 N. E. 797. Some of these decisions, as Heath v. Salt Lake City, and Moores v. State, were made under civil service statutes. Others of them were made under statutes which embodied no civil service feature.

It is not surprising, however, that the contention should often be made, as here, that the very notion of a tenure of office during good behavior, which means during active life, is wholly inconsistent with the notion that the grant of power to create such an office, in the absence of express restriction, implies, also, the unrestricted power to abolish the office, and thus put the incumbent out. A better rule would seem to be that, in the absence of an express grant in a statute providing for such tenure and prohibiting removals except for the causes and in the manner mentioned, when the council or the person or body in whom is vested the power to reduce the force does reduce it, it must regard those thus put out of active service as still upon the eligible list and entitled to be returned to active service whenever vacancies occur or the exigencies of the service demand it; otherwise, the offices may be abolished for purely personal or political reasons, in order to rid the force of objectionable members, leaving the way open thereafter to recreate them and fill them with persons against whom there are no such objections. Thus the very purpose of the statute would be defeated, by circuitous means, it is true, but none the less effectively. It must be conceded that, in the absence of restrictions contained in a civil service statute, a city having the power to create an office has also the implied power to abolish it. This rule is recognized everywhere. The concession must also be made that, when the condition of the finances of the city requires it, an office may be dispensed with even though it is controlled by the civil service statute. But this concession is to be made, we think, with the reservation that, if there is an eligible list from which appointments must be made, those who are put out of active service are relegated to this list, with the right to be returned to duty when the exigencies of the service require it. When we consider the purpose for which the statute was enacted, we cannot avoid the conclusion that the legislature intended to restrict the powers of the city government' so as to effectively accomplish this purpose, and this renders the further conclusion unavoidable that it did not at the same time leave undisturbed an implied power which could be used effectively to defeat its purpose^ The necessary result of this conclusion is that Ordinance No. 736,. supra, the apparent purpose of which was to abolish absolutely the office of the relator and remove him finally from the police-force of the city, is void, and did not confer upon the mayor the power which he assumed to exercise.

There is another distinct theory upon which the judgment of the district court should be sustained, with reference to-which there seems to be no conflict of authority, so far as the-decisions have been called to our attention, or we have been-able to examine them. The police force cannot be abolished^ as a whole; for under the first section of the Act (Revised Codes, sec. 3304), the city is required to maintain it. Nor can it be abolished in part, as we have already pointed out. The-power of the city extends only to a reduction in its number for-economical reasons. This power must always be exercised in good faith. It cannot be used for any other purpose than that for which it was given. Good faith in this connection means; an honest endeavor to keep within the law, and not by indirection to violate it. “The rule is general, with reference to the-enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except-as they may be disclosed on the face of the Acts, or inferablefrom their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always; be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments." (Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145.) In the case of Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, there was called in question the validity of an ordinance of the city of San Francisco, California, prohibiting, among other things, the conduct of a laundry within the city without the consent of the board of supervisors, except it be located in a building of brick or stone. The court held, that it was void because it was not reasonable upon its face, in that it conferred upon the board an arbitrary power to give or withhold consent, and rendered all engaged in the business tenants at will, as to their means of living, under the board. It also held that it was so administered by public authority as to nullify the provisions of the Fourteenth Amendment to the Constitution of the United States, which secures to all the equal protection of the laws. In discussing the administration of the ordinance, the court said: “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” Here the court infers the bad faith of the state authorities from the facts in evidence showing that in their administration there was a discrimination directed exclusively against a particular class of persons, and hence that the result amounted to an annulment of the constitutional provision.

So in the enactment of ordinances under metropolitan police laws, or in the administration of these laws by boards created by them for this purpose, the courts will look to the facts and determine whether the particular ordinance, or the act of the board or commission, carries out the spirit and intent of the legislation, or tends directly or indirectly to nullify it. In the case of Kipley v. Luthardt, 178 Ill. 525, 53 N. E. 74, the supreme court of Illinois affirmed a judgment of the circuit court of Cook county, which had issued a mandamus to appellant, as superintendent of police of the city of Chicago, to restore the appellee to his position of “Chief Clerk of the Detective Bureau.” The facts, as gathered from the statement in City of Chicago v. Luthardt, 191 Ill. 516, 61 N. E. 410, were that the appellee had been selected and appointed under civil service rules to the office then designated as above, and was performing the duties of the office; that the city council attempted to abolish the office by changing the name of if to “Secretary of the Chief of Detectives, rank of Lieutenant,” and refusing to make an appropriation for the salary of appellee, but actually making an appropriation for the salary of the office under its new designation; and that thereupon the superintendent of police discharged the appellee, and appointed another person to his place. The court held that the attempt of the council to dismiss the appellee and deprive him of his position was ineffectual, and that his rights remained the same as if no action had been taken by the superintendent of police or the council. The ease of City of Chicago v. Luthardt was an action in assumpsit by appellee to recover the amount of salary accruing between the time of his dismissal and the time of his restoration to office. In affirming the judgment of the circuit court in favor of appellee the state appellate court adopted the theory that inasmuch as the appellee had been removed from office illegally and appropriation made for the salary of the office, though- the ordinance designated it by another name, he was entitled to recover; it not appearing that the salary had been paid to anyone else. The supreme court also adopted this view. In both of these cases, as well as in the cases of People v. Kipley, 171 Ill. 44, 49 N. E. 229, 41 L. R. A. 775, and People v. Loeffler, 175 Ill. 585, 51 N. E. 785, the purpose of the statute is recognized, and in the former it is pointed out that, in order for this purpose to be fully accomplished, good faith is required of the officers upon whom devolves the duty of executing its provisions. The same principle is recognized in State ex rel. Attorney General v. Schumaker, 27 La. Ann. 332. In that case the statute authorized the police commissioners to reduce expenses and reorganize the police force to such an extent as economy and the limitations imposed by law required, and to this end to discharge such members of the force as in their judgment might be needful and proper. The court held that the power granted for one purpose could not be used for another, and that a discharge of one member of the force manifestly for the purpose of making place for another person was unlawful. Such, also, is the rule in the state of New York, though it is held, also, that the power to abolish an office is by implication confided to the discretion of the municipal authorities, to be exercised whenever the exigencies of the public service require it. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215, 43 N. E. 554.)

Applying this principle to the facts in the case before us, we are impelled to the conclusion that the combined act of the council and the mayor in enacting Ordinance 736 was intended, not to abolish the office of the relator and his associates for economical reasons, but to get them off the force permanently in order to make way for the mayor to fill their places with persons more acceptable to him. This is manifested by the fact that from and after June 4, 1908, when Ordinance 736 became operative under the referendum provision of the Code, supra, there were immediately put upon the force men to fill the places of relator and his associates discharged at the same time, and that they and others have since been retained under the name of special officers, for the appointment of whom there is no warrant in the statute, at an expense to the city substantially equal to that which would have been incurred if the relator and his associates had been retained. The effect of the proceedings, as a whole, has been to annul the statute and defeat the purpose for which it was enacted, by the very body to which has been intrusted the power to administer it.

The other contentions made in the brief are not of sufficient merit to demand special notice.

The judgment and order are affirmed.

Affirmed.

Mr. Justice Smith concurs.

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Dissenting Opinion

Mr. Justice Hoddoway:

I dissent. In my judgment the Helena city council had the power to abolish the office held by relator; that it exercised the power in the enactment of Ordinance No. 736; that relator was discharged from the police force; and that he. is not entitled to relief.

That under these metropolitan police laws the office of policeman is created by the city council, and not by the legislature, is conceded by everyone. That in the absence of statutory prohibition the city council may abolish any office which it creates is held by the authorities uniformly, and is admitted by relator, Quintín. In the brief of his counsel, it is said: “Whence the conclusion is manifest that in the absence of section 3220 and sections 2 and 3 of the police bill (Revised Codes, secs. 3305, 3306), the city council would be clothed with authority to abolish any office created by it, including the place held by a policeman. No statute is necessary to confer power upon a city to abolish an office created by it.”

Since in the opinion of the majority of the court there is not any consideration given to section 3220 above, it is fairly inferable that it was not deemed applicable to this case. The first portion of that section merely declares the law to be what it had been for years before the adoption of the statute. It is suggested, however, that to the language therein employed should be applied the maxim, “Expressio unius exclusio alterius,” but this contention was determined adversely to relator, in City of Helena v. Kent, 32 Mont. 279, 80 Pac. 258, and dissenting opinion of Justice Milburn. The last portion of section 3220 contains a prohibition upon the city council. The council shall not abolish any office therein referred to which has been created by the legislature. Beyond this, that section does not go; and in my opinion the section does not have any application in this case, and the city council still has the power to abolish the office of policeman, unless prohibited by the police bill itself. If it is prohibited by that Act from abolishing such office, then it is wholly immaterial for what reason it attempts to do so, since a good reason would not make a void act valid.

Section 2 of the police bill (Revised Codes, sec. 3305), does" not contain any restriction upon the power of the city council. It relates to the power and authority of the mayor. Section 3 '(section 3306), provides that, after applicants have passed the probationary period and have been appointed policemen, “they ■shall hold, during good behavior, or until by age or disease "they become permanently incapacitated to discharge their duties.” But this language is fully interpreted and explained in ■section 5 of the Act (Revised Codes, sec. 3308), as follows: “No member or officer of the police force in cities of the first class shall be discharged without a hearing or trial before said [examining and trial] board.” In other words, these seetionsi merely mean that, so long as the office is in existence, the incumbent shall hold it unless incapacitated by age or disease, or unless he is removed for cause after trial as provided in section 5 of the Act. This is the meaning given like Acts in every state where they have ever been construed. But these sections do not expressly or impliedly prohibit the council from abolishing the office. As said in the opinion of the majority above: “It cannot be supposed that the legislature intended that after the police force had once been created and its members finally appointed, the number so appointed must continue in office, whether the financial condition of the city or the public needs required their retention or not.” That, notwithstanding the ■enactment of this police law, the city council retains its implied power to abolish the office of policeman, is affirmed by every court whose decision has been pressed upon our attention. The list of authorities given in paragraph 3 of the majority opinion, above, evidences to some extent the uniformity with which this doctrine has been asserted. And since many, if not all, of these cases were decided some considerable time before the enactment of our statute it would seem reasonable that our legislature must have adopted this measure with full knowledge of the construction given similar Acts and with the intention that our law should receive the same construction given like measures by the highest courts of the states where the question had arisen. That in adopting Ordinance 736 the Helena city council abolished the offices of three policemen is amply sustained by reason and the cases referred to above.

The city council having abolished three offices, It was the- duty of the mayor, who is charged with the supervision of' the police force, to designate the particular members who should be dropped from the force, and this was done. In Heath v. Salt Lake City, 16 Utah, 374, 52 Pac. 602, the court was there considering am Act in all essentials the same as our own, and upon this particular feature said: “We think the designation of the- members of the department who were t'o be dismissed in pursuance of the ordinance was properly a matter for those who had Supervision and control of the department; they being doubtless more familiar with the requirements of the public service-. The members designated, having thus been discharged' because of the abrogation of their offices, had thereafter no valid claim against the municipality for salaries,” etc.

In my opinion there is but one restriction upon the power of the city council to abolish these offices, and that is contained in section 1 of this Act: ‘ ‘ There shall be in every city and town of this state a police department,” etc. The city council could not, therefore, abolish the office of every policeman, but within, the restriction contained above, the city council has the authority to say how many policemen shall be employed at any given time. A city of 25,000 population to-day, which depends upon a single industry, might have its population reduced to 500 by the removal of that particular industry, and yet, if in- its prosperous days forty policemen were necessary and were appointed under this police bill, the city in its adversity would be- compelled to maintain the same force, unless the city council could reduce it. In my judgment, if the power does not exist to reduce the force by abolishing some of the offices, it does, not exist .at all.

The statute, as I read it, does not expressly or- by implication authorize the city council to remove- a policeman from active-service and, by depriving him of his- duties and compensation, effect a reduction of the city’s expenses. The status of a policeman thus reduced would defy definition. Certainly, the definition of the word “policeman,” as given in the opinion of the: majority above, would not apply to bim, and yet he is either a policeman or he is not a member of the police force at' all.

Rehearing denied February 4, 1910.

It does not aid relator in the least to urge that the city officials are violating the law in employing so-called extra policemen. If a wrong is being done by the employment of such men, the law affords an adequate remedy, but it is wholly beside the question of relator’s right.