208 P. 943 | Mont. | 1922
prepared the opinion for the court.
This is an action brought by Thomas D. Sweeney, the plaintiff and respondent, against the city of Butte,' defendant and appellant, to recover his salary as a member of the police department of defendant from May 1, 1918, to July 25, 1920. Plaintiff recovered judgment in the district court and the defendant appeals.
Summarizing the facts, as alleged in plaintiff’s complaint, they are as follows:
Defendant is a municipal corporation, a city of the first class, possessing a population exceeding 10,000. In June, 1908, it adopted an ordinance creating a police department. On May 1, 1918, plaintiff was, and now is, a qualified member thereof in the capacity of patrolman, having been duly and regularly appointed thereto. On May 1, 1918, the mayor of the city of Butte ousted and wrongfully removed him from such position as a member of said police department, causing his name to be stricken from the pay-roll without any charges of any kind being preferred against him before the examining
The answer of defendant admits the adoption of the ordinance creating the police department, and that it rejected and disallowed plaintiff’s claim, denies all other allegations of the complaint, and alleges that said cause of action is barred by the provisions of Chapter 11 of the Extraordinary Session of the Sixteenth Legislative Assembly. From the judgment in favor of plaintiff, and the order refusing a new trial, defendant appeals.
Several specifications of error are alleged; but, as we view the cause, only two propositions are involved: First, may the defendant at this time attack the judgment rendered in the district court, determining plaintiff was entitled to the office and the emoluments thereof? Second, what is the effect upon this action of Chapter 11 of the Extraordinary Session Laws of the Sixteenth Legislative Assembly, approved August 11, 1919?
Not having appealed from the judgment awarding the peremptory writ, defendant is bound by it. (Sec. 10558, Rev. Codes 1921.) The peremptory' writ issued in the mandamus action directed the defendant to admit plaintiff “to the use, enjoyment and possession in active service, and to the pay, and position, and office, of patrolman and member of the police department of the city of Butte.” This was an adjudication
Therefore plaintiff is entitled to the amount claimed as salary, unless his claim is barred by the provisions of said Chapter 11, enacted at the Extraordinary Session of the state legislature in 1919. This Chapter is as follows:
“Section 1. Actions to recover salaries by members of the police department of cities must be commenced within six (6) months after the cause of action shall have accrued.
“Sec. 2. No action can be maintained by members of the police department of cities for unpaid salary, except for service actually rendered and if suspended or placed on the eligible list, then only for the days the member of the police department reports for duty.
“Sec. 3. All Acts and parts of Acts in conflict herewith are hereby repealed.
“Sec. 4. This Act shall be in full force and effect from and after its passage and approval.”
It is contended by plaintiff that the Act is within the inhibition contained in section 11 of Article VII of the Constitution of Montana, in that the subject of the Act is not within the purview of the proclamation or recommendation of the governor. Section 11 of Article VII is as follows: “He may on extraordinary occasions convene the legislative assembly by proclamation, stating the purposes for which it is convened, but when so convened, it shall have no power to legislate on any subjects other than those specified in the proclamation, or which may be recommended by the governor, but may provide for the expenses of the session and other matters incidental thereto. He may also by proclamation convene the
The proclamation of the governor, calling the special session, has no reference to the legislation embodied in said Chapter 11, but in his message to the legislature at this session, on the day it convened, with reference to the “department of police,” the governor said: “The mayor of the city of Butte has directed my attention to the fact that the law having to do with ‘department of police’ has been so construed as to work an injustice upon cities. He states that the city of Butte has paid out more than one hundred thousand dollars in salaries to discharged and suspended policemen, for which no service was rendered. He considers the matter of emergent importance and asks that I submit the same to you for consideration. There ought to be amendment to the general law so that such conditions may be obviated in the future.”
Does Chapter 11, subsequently passed at the special session, come within the scope of the governor’s message 1 Section 11 of Article VII of the Constitution was construed by this court in State ex rel. Boston etc. Co. v. Harney, 30 Mont. 193, 76 Pac. 10, and State ex rel. A. C. M. Co. v. Clancy, 30 Mont. 529, 77 Pac. 312. In the latter case the court-said: “When the exigencies of the times require it, the legislature may be called in extraordinary session by the governor to consider particular subjects of legislation. Those subjects must be enumerated in the proclamation or in the governor’s message to the assembly, and the power of the legislature is limited to enacting laws affecting those subjects only. (See. 11, Art. VII, above.) In other words, the governor may submit the subjects with reference to which legislation is desired, but the law-making body then has absolute power to construct such laws respecting those subjects as it shall see fit (unless restrained by constitutional inhibition), or to disregard the subjects altogether and not enact any measures respecting them.”
What effect does Chapter 11 have upon the plaintiff’s cause of action? Section 1 of the Act provides: “Actions to recover salaries by members of the police department of cities must be commenced within six (6) months after the cause of action shall have accrued.”
Plaintiff is suing for salary from May 1, 1918, to June 25, 1920. Said Chapter 11 was approved August 11, 1919. This action was commenced September 1, 1920. If, therefore, its limitation applies to the cause of action pleaded, plaintiff can
Plaintiff is correct in his assertion that his cause of action did not accrue until the rendering of the judgment awarding him the office, for he could not maintain this action to recover his compensation until it has been judicially determined that he has been wrongfully ousted. (Peterson v. City of Butte, 44 Mont. 401, Ann. Cas. 1913B, 538, 120 Pac. 483.)
“Where the right to sue, to resort to the particular remedy, or to proceed against particular persons depends upon the prior ascertainment of facts, or the establishment of particular conditions upon which the peculiar liabilities may be enforced, the running of the statute begins from the ascertainment of such facts or the establishment of such conditions. * * * And where such facts or conditions as those last above mentioned must be ascertained by a judgment in judicial proceedings, the statute does not run until the right of action has been ascertained by such proceedings and judgment.” (25 Cyc. 1199, 1200:)
In Pease v. State ex rel. Sutherland (Tex. Civ. App.), 228 S. W. 269, it was held that the statute of limitations does not commence to run against a cause of action for the recovery of salary paid the defendant during occupancy of office to
But the defendant contends that plaintiff waited until the twenty-eighth day of May, 1920, before commencing his action in mandamus, a period of more than two years after he was ousted from the position, which is an unreasonable length of time, and therefore he is guilty of laches in commencing the mandamus action, invoking the rule laid down in 25 Cyc. 1198, to the effect that a party cannot suspend indefinitely the running of the statute of limitations by delaying the performance of the preliminary act; and if the time for such performance is not definitely fixed, a reasonable time, but that only, will be allowed therefor.
But defendant in this case is not in a position to urge laches in the commencement of the mandamus action, because no such defense was made in that case. This defense is merely a privilege, which may be interposed, or waived by failing to interpose it. (State ex rel. Kolbow v. District Court, 38 Mont. 415, 100 Pac. 207; sec. 9065, Rev. Codes 1921.) If the defendant had pleaded that defense in the mandamus case, it would have become an issue to be determined by the trial court, and plaintiff- would have had an opportunity to meet it. Not having pleaded laches in the mandamus action, defendant has waived that defense. We are therefore of the opinion that plaintiff’s cause of action is not barred by section 1 of this Act.
What effect has section' 2 of this Act upon the plaintiff’s cause, of action? An examination discloses that this sec
Plaintiff performed no work from May 1, 1918, to July 24, 1920, but he was ready and willing to perform the work, and was prevented from doing so by the wrongful and unlawful act of the city. The theory of the defense, as we understand it from the arguments of counsel for defendant, is that the dismissal of plaintiff on May 1, 1918, severed his connection permanently with the police force, and that plaintiff should not have been reinstated by the mandamus proceedings; that he (the plaintiff) “was properly dismissed by the mayor.” The judgment in the mandamus case determined plaintiff was wrongfully ousted from his position. He was prohibited from doing the work, or rendering service, as a'patrolman.
The city cannot wrongfully prohibit plaintiff from performing his duties as patrolman, and, when sued for payment of' the salary, plead that, as he did not perform the work, he may not recover. We are of the opinion that the - statute under consideration was not intended to be used for that purpose.
“The general rule is that a public officer is entitled, to the compensation attached to the office, though he is not in active service, being unable to perform service because he has wrongfully been excluded or ousted from it.” (Peterson v. City of Butte, 44 Mont. 401, Ann. Cas. 1913B, 538, 120 Pac. 483.)
It is one of the maxims of our Codes that “no .one can take advantage of his own wrong.” (Sec. 8746, Rev. Codes 1921; Postal Tel.-Cable Co. v. Nolan, 53 Mont. 129, 162 Pac. 169; Butte Miners’ Union v. City of Butte, 58 Mont. 391, 13 A. L. R. 746, 194 Pac. 149.) The construction contended for by defendant would nullify the provisions of the Metropolitan Police Law, and give the mayor power to take any patrolman out of service without any charges being preferred or trial
This provision of section 2 of said Chapter was designed to prevent members of the department of police being paid their salaries where the services are not actually performed; but it has no application to the plaintiff’s cause of action, for the reason that he offered to and was willing to perform the services pertaining to the office, but was prevented from doing so by the unlawful act of the defendant.
But the defendant seriously urges that the second clause of said section 2 applies to the plaintiff’s cause of action, inasmuch as it provides that, if the member is suspended or placed on the eligible list, then he can only recover for the days he reports for duty. It is true, the record in this case shows that the plaintiff reported for duty only a few days; but the plaintiff in this case was not “suspended,” as that term is used in the Metropolitan Police Law. He was discharged from further service, and ousted from his position; and the city did not restore him to his position until directed to do so by the peremptory writ, issued more than two years after the unlawful ouster. Section 5099, Revised Codes of 1921, provides: “* * * The mayor and 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. * * * ”
Defendant does not urge and the record and pleadings do not show that plaintiff was taken out of the service by the mayor by virtue of the suspension clause in said section 5099, so it cannot be successfully contended that this portion of the Act applies to plaintiff’s cause of action.
Defendant’s last contention is that plaintiff was placed upon the eligible list, and therefore he cannot recover his salary, as he did not report for duty each day during the time for which he demands salary. But the evidence in this case does not show plaintiff was ever placed upon the eligible list. Section 5101, Revised Codes of 1921, provides that vacancies shall be filled
We therefore recommend that the judgment and order appealed from be affirmed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.
See last paragraph of opinion in Sullivan v. City of Butte, 65 Mont. -, 211 Pac. 301.