Bowen v. City of Portland

• Decision Date: 07 August 1920
• Citation: 111 A. 1
• Parties: BOWEN v. CITY OF PORTLAND.
• Court: Maine Supreme Court

111 A. 1

BOWEN

v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

August 7, 1920.

Report from Superior Court, Cumberland County, at Law.

Action by Daniel L. Bowen against the City of Portland. On report from the Superior Court. Judgment directed to be entered for defendant.

Argued before SPEAR, PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

Arthur D. "Welch and William C. Eaton, both of Portland, tor plaintiff.

H. P. Frank, John T. Fagan, and H. C. Wilbur, all of Portland, for defendant.

DUNN, J. For 24 years, up to 1909, the marshal or head of police in Portland was appointed by that city's mayor, and held office at the latter's will. In 1909, by chapter 370 of the Private and Special Laws, operative July 3d, the Legislature enacted:

"The chief of police shall be appointed by the mayor and shall hold office for the term of five years. * * * The present chief of police shall be eligible to appointment under the provisions of this section, and if appointed his term * * * shall begin from the time this act takes effect. Vacancies in said office shall be filled from the unexpired term."

In point of fact it may be stated, though not specifically related to the question this case involves, that the engrossed bill, in the office of the secretary of state, shows original text of the law to be that vacancies shall be filled "for" and not "from" an unexpired term.

After the act became effective, Walter H. Dresser, then head of the police department in Portland, was appointed to be chief of police. His commission embraced a term of five years, predating in count four days to the day on which and from which the statute first was efficient. At the expiration of his term, by limitation of time, on July 2, 1914, no one clothed with insignia of office, and empowered to exercise its functions, appeared as his successor. Accordingly Mr. Dresser held office over, until plaintiff came forward, exactly four months later, bearing commission, dated some three weeks earlier, "for the term of five years * * * from the date of qualifying of said appointee." Dresser thereupon retired from, and plaintiff assumed, official station. On July 3, 1919, while, as plaintiff claims, four months of his five-year term yet remained, Mr. Irving S. Watts was duly appointed chief of police. Mr. Watts at once qualified. Plaintiff, throughout the four-month period next following, demanded that he himself, and not Watts, should be recognized as chief; his insistence being that official term for him continued for five consecutive years, reckoning from the time he entered office. Defense is rested on the theory that regular terms of the office succeed each other at quinquennial intervals, beginning with the day that the authorizing statute first had effect. Practical inquiry is what certain language in the statute means.

In the record of legislative doings, as elsewhere, dexterity of phrase is not always revealed. Nevertheless, meaning usually is as scrutable as though all the resources of burnished rhetoric obtained. The highest of all canons for the construction of a statute is that intention will control interpretation. No clearer statement has been made as to the dominating influence of intention than that which is found in Kent's Commentaries:

In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter. When the words are not explicit the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the remedy in view, and the intention is to be taken or presumed according to what is consonant with reason and good discretion. 1 Kent's Com. § 462.

Modern tendency, concerning incumbency of public office, is toward the establishment, either by Constitution or by statute, of terms of definite duration. This idea is strongly suggested in French v. Cowan, 79 Me. 426, 10 Atl. 335. That case and Wilson v. McCarron, 112 Me. 181, 91 Atl. 839, arose under the self-same statute. Decision in the first mentioned was shaped by the rule that mandamus is not an appropriate remedy to try title to office as against one in possession under color of right. Viewing that case in the aspect of what was regarded as its merits, this court remarked that contestants each claimed the same official station under a statute which, when read in connection with the act it amended, divided the terms of office of city marshal in Lewiston into biennial periods, following each other, closely and continuously, from an initial starting point. But this statement, being alien from the determinative factor in the case, does not attain above dictum. More recently, in Wilson v. McCarron, supra, the court, differently interpreting statutory situation, held that the Legislature had created an office and designated length of its term, but had not undertaken to define the time when the term should begin or end, and that it had made no...