Larsen v. City of St. Paul

• Citation: 83 Minn. 473
• Decision Date: 14 June 1901
• Docket Number: Nos. 12,593 - (148).,s. 12,593 - (148).
• Parties: OLAF LARSEN v. CITY OF ST. PAUL.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

83 Minn. 473

OLAF LARSEN v. CITY OF ST. PAUL.¹

Nos. 12,593 - (148).

Supreme Court of Minnesota.

June 14, 1901.

Action in the district court for Ramsey county to recover $311.11, and interest, arrears of salary as sergeant of police. The case was tried before Otis, J., who found in favor of plaintiff for $175 and interest. From an order denying a motion for a new trial, defendant appealed. Affirmed.

James E. Markham and Arthur J. Stobbart, for appellant.

Oscar Hallam, for respondent.

COLLINS, J.

May 1, 1887, at the time the mayor of the city of St. Paul attempted to appoint the plaintiff a police sergeant, it was provided by the charter (Sp. Laws 1887, c. 48, § 12) as follows:

"The mayor shall appoint the chief of police, the captains, the detectives, the sergeants and all policemen, patrolmen and police officers at any time appertaining to the police department of said city, and by whatever name designated, with the advice and consent of the common council; but no person shall be eligible to the appointment as policeman, patrolman or other police officer, who is not a citizen of the United States, or under the age of thirty-five years, able to read and write the English language, a resident of the city of St. Paul for at least two years preceding his appointment, and who is not of good health and physique, the standard of admission into the army of the United States as established by examination to govern in this particular."

Based upon this feature of the charter, it is the contention of counsel for defendant city that the plaintiff was not eligible to appointment as such sergeant, because he was more than thirty-five years of age, and was not a citizen, having simply declared his intention to become such. From the time of the attempted dismissal from the force, June 14, 1894, up to October 6, it stands admitted that he performed no services for the city, and that another person was appointed and acted as sergeant in his place. It was, therefore, incumbent upon him, in order to recover salary, to show that he was eligible to appointment as sergeant, that he was duly appointed to and inducted into office, and that he was not legally dismissed. It is also admitted that the common council never acted upon his appointment by direct vote; in other words, that the council never expressly confirmed his appointment by the mayor. And, further, his removal by the mayor was not approved by the assembly, — one branch of the council as now constituted, — as under the charter it was required to be, in order to become effective. The fact is that the assembly expressly refused to approve the mayor's order of removal.

The first question for consideration, therefore, is whether plaintiff was eligible to appointment at the time in 1887, when it was made. Prior to the year 1883 there had been several enactments in respect to the police force of the city of St. Paul, in which provisions were made for a department consisting of the mayor, chief of police, captains, lieutenants, sergeants, detectives, "policemen, patrolmen, and police officers," each being specially mentioned and provided for. In most of these enactments certain requirements were specified as to qualifications for appointment, but in others none whatever were demanded, the law being silent on the subject. By Sp. Laws 1885, c. 7, § 18, — a charter amendment, — there was a provision that the department should consist of the mayor, a chief, one captain, two lieutenants, four sergeants, three detectives, and as many policemen, patrolmen, and police officers" as might be authorized by the council, with the approval of the mayor. It was further provided that

"No person shall be eligible to the appointment as captain, sergeant detective, policeman, patrolman or other police officer who is not a citizen of the United States, or under the age of thirty-five years, able to read and write the English language, a resident of the city of St. Paul for at least two years preceding his appointment, and who is not of good health and physique, the standard of admission into the army of the United States, as established by examination, to govern in this particular."

The next legislation upon this particular matter was the act of 1887, before quoted; and it will be noticed that captains, sergeants, and detectives, all of whom had expressly been made subject to the eligibility tests prescribed in the act of 1885, were not mentioned. They were omitted from the list as set forth in the enactment of 1887. The latter law repealed that of 1885, and by its provisions we are obliged to pass upon the question of plaintiff's eligibility to the office of sergeant. It is plain that a radical change as to qualifications was intended and...