117 P. 77 | Mont. | 1911
delivered the opinion of the court.
On July 12, 1910, the above-named relator was chief of police o'f the city of Butte.. On that day written charges were filed against him by the mayor, with the examining and trial board of the police department; a hearing was subsequently had and the board found him guilty of misconduct in office. The mayor thereupon discharged him permanently from the police department and from his office of chief of police. He subsequently sued out of the district court of Silver Bow county a writ of review, praying that the actions of the board and of the mayor be set aside and held for naught, whereupon the respondents moved to quash the same. The motion was granted and the proceedings were dismissed. From a judgment entered pursuant to the order of dismissal relator has appealed. Attached to his affidavit are the charges filed against him by the mayor, together with his answer thereto and the testimony taken at the hearing, so that the district court had before it, and we have before us, the whole record upon which the mayor and the board acted.
It is contended that the charges were not sufficient in law to constitute or be misconduct in office or any offense whatever. In the ease of Bailey v. Examining and Trial Board, 42 Mont. 216, 112 Pac. 69, we said: “A charge without substance is no charge. One of the essential requirements of law is that a charge shall embody facts sufficient to constitute a cause of action within the meaning of the Act.” The relator was charged with misconduct in his office of chief of police. It would serve no useful purpose at this time, nor is it necessary, to attempt to detail what may be comprehended in a charge of misconduct in office. Any
It appears from the evidence of one Lavelle, who held the position of city jailer in Butte, that on or about the 10th or
On August 18, 1908, the relator filed with the county auditor the following claim against the county:
“Silver Bow County to E. W. Wynne, Dr.
“State of Montana v. Philip Gilbert, Joe Colosmo.
“(Warrant) Mileage Great Falls............688 miles $68.80
“Officer Butte to Great Falls................172 miles.
“Officer Great Falls to Butte................172 miles.
“Two prisoners Great Falls to Butte..........344 miles.
688
*395 “State of Montana,
“County of Silver Bow, — ss.
“The undersigned, being duly sworn, says that the items mentioned in the foregoing account were furnished as therein stated, and that the amount therein claimed is just, due and wholly unpaid.
“E. W. Wynne.
“Subscribed and sworn to before me this 18th day of August, 1908.
“Gus. J. Stromme, “County Auditor.
“Geo. Roff,
“Deputy County Auditor.”
The following indorsements appear on the claim:
“To the Board of County Commissioners:
“Gentlemen: I have examined the within account and claim against Silver Bow county and find that the amount, $68.80, appears to be correct as presented, unpaid and should be allowed.
“Gus. J. Stromme, “County Auditor.
“The within account is allowed in the sum of $-on the general fund, October 15, 1908.
“John G. Holland, “Chairman Board' Co. Com.”
On October 15, 1908, the relator received from the county treasurer the amount claimed by him, $68.80. Mr. Brown, a member of the board of county commissioners, testified that the claim was not immediately allowed for the reason that the board was opposed to paying it, “thinking that that part of the work belonged to the sheriff.” Mr. Holland, another commissioner, testified that the board was waiting to ascertain whether the sheriff would make a similar charge for the same service. He also testified that Chief Wynne appeared before the board and “claimed that he attended to the service and that he should be paid, that other chiefs of police were being paid for similar character of work.” Mayor Corby, from whom Wynne received
On September 16, 1908, the county auditor transmitted to the county attorney a copy of Wynne’s bill against the county with the inquiry: “Is the bill of E. W. Wynne a legal claim against Silver Bow county and should the same be paid ? ’ ’ The county attorney replied that service of the warrant by the chief of police was valid and that the chftm should be paid. The county attorney himself testified that he regarded it as a legitimate claim against the county, but there is not anything in his testimony or in his letter to indicate that he had any knowledge that Wynne had not actually performed the services.
Mr. Henderson, the sheriff, testified that he was of opinion that the service of the warrant belonged exclusively to his office, and therefore protested against the payment of the claim, but having learned afterward that the “chief had as much right to collect the money as the sheriff had,” he withdrew his objections.
The relator testified that the owner of the stolen bicycle made complaint of his loss and was told by him to go to the county attorney and get a warrant; he then traced the accused men to Great Falls and was notified by Chief Pontet that they had been arrested; prior to this time he had been told by chief of police Flannery, of Helena, that he was foolish not to claim the right to make such arrests, as he, Flannery, always did it. The county attorney gave him a warrant for the men. He continued: “I fully intended to go after the men but it so happened that Lavelle was over there. The message came that Lavelle was there
County Commissioner Brown testified that he had no knowledge that Wynne did not go to Great Falls, until after the claim had been allowed. Lavelle denied that Wynne told him that if the .claim was allowed his railroad fare would be paid both ways, and he also testified that he and Wynne did not discuss the matter of filing a claim against the county.
It will be seen from the foregoing that the question presented to Mayor Corby, and to the county attorney, the county commissioners and the auditor, was whether the chief of police of Butte could lawfully serve a warrant outside of Silver Bow county. Those officers correctly determined that he could do so. (State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940.) And of course, if he could lawfully serve the warrant, he could claim legal fees for such service. But the broader, general question whether an officer may claim fees for a service which he has not actually performed, basing his claim upon the fact that he has achieved the same result that would have been accomplished had he performed the service, seems not to have been presented to them for determination. The relator had no greater right to charge statutory mileage for himself than he would have had had he induced the accused persons to go from Great Falls to Butte unaccompanied by. an officer. The case involves the consideration of a question to which the people of the ' country are at present giving considerable thought and attention.
Nothing is gained' for the relator by a consideration of the fact that the officers of Silver Bow county paid his claim, or
It is alleged in the affidavit of relator that “the respondents did not act in good faith in the presentation and trial of said
The judgment is affirmed.
Affirmed.