Larson v. City of St. Paul

• Decision Date: 14 June 1901
• Citation: 86 N.W. 459,83 Minn. 473
• Parties: LARSON v. CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

83 Minn. 473

86 N.W. 459

LARSON

v.CITY OF ST. PAUL.

Supreme Court of Minnesota.

June 14, 1901.

Appeal from district court, Ramsey county; Charles E. Otis, Judge.

Action by Olaf Larson against the city of St. Paul. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

1. Under the provisions of the charter of the city of St. Paul (section 12, c. 48, Sp. Laws 1887) it is not necessary that an appointee to the office of sergeant of police shall possess the requirements therein mentioned for a ‘policeman, patrolman, or other police officer.’

2. In order to consent to and concur in an appointment made by the mayor of a police sergeant, the city council need not express its consent or concurrence in any particular way or form. In the case at bar the plaintiff was appointed by the mayor, and entered upon and discharged the duties of the office, and his name appeared as sergeant on the monthly pay rolls submitted to and approved by the city council for more than 7 years, and through its approval of these pay rolls payment was made to him for 84 months as such sergeant. Held, that by these acts the consent of the council to the appointment was clearly shown.

3. Held, further, that the court below was justified in finding that the plaintiff had not acquiesced or consented to an attempted removal by the mayor, but, on the contrary, had always asserted and maintained his right to the office in question, and to the emoluments thereof.

4. The salary annexed to a public office is incident to the title to the office, and not to its occupation and exercise, nor to the usurpation or colorable possession of it. On the conditions shown here, there is no merit in the claim that the plaintiff cannot recover because there was a de facto officer to whom the salary was paid during the period of time-about three months-between the day of his attempted dismissal and the day of his reinstatement. 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 (section 12, c. 48, Sp. Laws 1887) 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 appointment as policeman, patrolman or other police officer who is not a citizen of the United States or under the age of 35 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 35 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 the 6th day of October, 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 section 18, c. 7, Sp. Laws 1885,-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 other police officers' as might be authorized by the council, with the approval of the mayor. It was further provided that ...