Bailey v. Examining & Trial Bd. of Police Dep't of City of Helena

Citation45 Mont. 197
PartiesBAILEY v. EXAMINING AND TRIAL BOARD OF POLICE DEPARTMENT OF CITY OF HELENA et al.
Decision Date08 March 1912
CourtUnited States State Supreme Court of Montana

OPINION TEXT STARTS HERE

Appeal from District Court, Lewis and Clark County; J. Miller Smith, Judge.

Action by Leonard Bailey against the Examining and Trial Board of the Police Department of the City of Helena, and others, members of such board. Judgment for plaintiff. Defendants appeal. Reversed and remanded, with direction to dismiss.

See, also, 42 Mont. 216, 112 Pac. 69.

Edward Horsky and C. W. Wiley, for appellants. W. T. Pigott and Gunn, Rasch & Hall, for respondent.

HOLLOWAY, J.

On September 30, 1910, Frank J. Edwards, then mayor of the city of Helena, presented to the Examining and Trial Board of the Police Department of that city a complaint in writing charging Leonard Bailey, a captain of police, with delinquency of official duty. Bailey had been appointed, had qualified, and was serving under the Metropolitan Police Law of this state. The Trial Board gave due notice to the accused, who appeared personally and by counsel and participated in the trial which followed. On October 10, 1910, the Trial Board rendered its decision finding the accused guilty as charged in counts 1 and 2 of the complaint. Acting upon this decision, the mayor, on October 11, 1910, made an order discharging Bailey from the police force. This action was thereupon instituted by Bailey to have the decision of the Trial Board set aside upon the ground that the essential requirements of the law had not been observed by the board in this: (1) That each of the counts upon which plaintiff was found guilty is without substance, is fictitious, trivial, and insufficient to show incompetency, neglect of duty, misconduct in office, or conduct unbecoming an officer; and (2) that the evidence introduced before the Trial Board fails to sustain either count. Attached to the complaint is a copy of each of the following papers: The complaint made by Edwards, the notice of the hearing, certain objections interposed by the accused, a motion to strike out certain portions of the complaint, the evidence taken before the Trial Board, the findings or decision of the board, and the order discharging the accused officer. An answer was presented by defendants, but it did not raise any material issue, and for all practical purposes the cause was tried as upon an agreed statement of facts. The district court found for the plaintiff and rendered and had entered a judgment annulling the findings of the Trial Board. From that judgment this appeal is prosecuted.

1. Of the two counts upon which plaintiff was convicted, the first, which relates to alleged misconduct at the time of a fire at Lenox, need not receive further consideration than to say that the record of the testimony taken before the Trial Board fails to disclose any substantial evidence to support it.

2. If the facts in the second count constitute a triable offense, within the meaning of section 3309, Revised Codes, then the conclusion of the Trial Board should stand, for there is substantial evidence to support it. The charging part of that count reads: “Complaint was made by Mr. Bollinger, a Rodney street merchant, who was by this officer told that nothing could be done for him unless he would swear out a warrant. This complaint was made because of an obstruction, in the shape of a stone step on the sidewalk in front of the residence of Eugene Meyer on Fifth avenue.”

The triable offenses mentioned in section 3309, above, are: (1) Incompetency; (2) neglect of duty; (3) misconduct in office; (4) conduct unbecoming an officer. If the sufficiency of the complaint above should be determined by the rules of pleading which control in courts of justice, it is obvious that it is fatally defective; but such rules cannot have application to the proceedings before the Police Trial Board. The only requirement of the statute is that the charge shall be reduced to writing (section 3309, above); and if in substance it makes out any one of the triable offenses mentioned, it is sufficient. And even in determining this question the courts will apply the most liberal rules of construction, and necessarily so. The members of the Police Trial Board are not required to be learned in the law of pleading and practice. in fact, many board members are laymen entirely unfamiliar with court procedure Neither is it demanded nor contemplated that the person preferring charges against a policeman shall specify the details of the charge, give a particular designation to the offense, or employ an attorney to draft the complaint. To insist upon strictness in construing a written charge of this character would defeat the purpose of the law and render members of the police force immune from discipline. The following authorities bear out the view we have expressed: People ex rel. Cagney v. MacLean, 10 N. Y. Supp. 851;1Oesterreich v. Fowle, 132 Mich. 9, 92 N. W. 497;People v. New York Police Commissioners, 93 N. Y. 97;People v. Patridge, 180 N. Y. 237, 73 N. E. 4;Yoe v. Hoffman, 61 Kan. 265, 59 Pac. 351; 28 Cyc. 508.

As it will be observed by reference to the statute above, the triable offenses are stated in such broad terms as to defy accurate definition. In Falloon v. Clark, 61 Kan. 121, 58 Pac. 990, the court said: “The only grounds of removal by impeachment are ‘misdemeanor in office,’ and these terms we think are used in a parliamentary sense and mean misconduct in office. It is something which amounts to a breach of the conditions tacitly annexed to the office and includes and wrongful official act or omission to perform an official act.”

In State ex rel. Tilley v. Slover, 113 Mo. 202, 20 S. W. 788, the court was called upon to review an order removing an official stenographer. In the course of the opinion the court said: “The phrase ‘misconduct in office’ is broad enough to embrace any willful malfeasance, misfeasance, or nonfeasance in office, and it cannot be doubted that an official stenographer who willfully sets at naught this constitutional prohibition by refusing to personally devote his time to the performance of his official duties, whatever his reason therefor may be, is guilty of misconduct in office, within the meaning of the statute, and may be removed from office by the judge of the court of which he is such an officer.” This language is quoted with approval in Coffey v. Court, 147 Cal. 525, 82 Pac. 75.

In Mechem on Public Offices & Officers, § 457, the author says: “Misconduct, willful maladministration, or breach of good behavior, in office, do not necessarily imply corruption or criminal intention. The official doing of a wrongful act, or the official neglect to do an act which ought to have been done, will constitute the offense, although there was no corrupt or malicious motive.” See, also, Leggatt v. Prideaux, 16 Mont. 205, 40 Pac. 377, 50 Am. St. Rep. 498;State ex rel. Wynne v. Board, 43 Mont. 389, 117 Pac. 77;State ex rel. Ryan v. Board, 45 Mont. -, 122 Pac. 569, decided March 7, 1912.

“Misconduct” is defined as “wrong conduct; bad behavior; mismanagement.” The synonyms are: “Misbehavior; misdemeanor; mismanagement; misdeed; delinquency; offense.” The verb “misconduct” is defined: “To conduct amiss; to mismanage.” Webster's International Dictionary.

In effect, this second count charges that, when complaint was made to Bailey by Bollinger that there was an obstruction on a public sidewalk in the city, the officer refused and neglected to do anything in the matter unless Bollinger would procure a...

To continue reading

Request your trial
11 cases
  • Phipps v. Boise Street Car Co., 6761
    • United States
    • United States State Supreme Court of Idaho
    • October 29, 1940
    ...... . . 1. Where a trial has been had upon depositions and trial court. ... Dictionary; Bailey v. Examining etc. Bd. of Helena Police. Dept., ... (Beardsley v. City of Hartford, 50 Conn. 529, 47 Am. Rep. 677; ......
  • State Bank Charter Application of Sec. Bank, Buffalo, Matter of, 5153
    • United States
    • United States State Supreme Court of Wyoming
    • February 5, 1980
    ...for Professional Engineers and Land Surveyors, 1955, 60 N.M. 242, 290 P.2d 1077, 1080; Bailey v. Examining and Trial Board of Police Department of City of Helena, 1912, 45 Mont. 197, 122 P. 572, 574. The word implies wrong intention and not mere error of judgment. In re Ash, 1973, 113 N.H. ......
  • Hatfield v. New Mexico State Board of Registration for Professional Engineers and Land Surveyors, 5875
    • United States
    • Supreme Court of New Mexico
    • July 29, 1955
    ...delinquency; offense.' The verb 'misconduct' is defined: 'to conduct amiss; to mismanage.' Bailey v. Examining and Trial Board of Police Department, City of Helena, 45 Mont. 197, 121 P. 572, 574.' In resolving the question before us, we should not overlook the fact that the licensing act as......
  • Wendland v. City of Alameda
    • United States
    • California Court of Appeals
    • September 12, 1955
    ...anger. 'Offense' has been held to be synonymous with 'misconduct' see 58 C.J.S. p. 819 note 40 * * *.' In Bailey v. Examining & Trial Board, 45 Mont. 197, 200-201, 122 P. 572, 574, it is stated: 'In Mechem on Public Offices & Officers, § 457, the author says: 'Misconduct, willful maladminis......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT