Mitchell v. City of Topeka

• Decision Date: 17 September 1898
• Citation: 54 P. 292
• Parties: MITCHELL v. CITY OF TOPEKA.
• Court: Kansas Court of Appeals

54 P. 292

MITCHELL v. CITY OF TOPEKA.

Court of Appeals of Kansas, Northern Department, Eastern Division

September 17, 1898

Syllabus by the Court.

1. Under the provisions of section 12 of chapter 181 of the Session Laws of 1889, police boards of cities of the first class having a population of less than 40,000 were authorized to appoint a policeman designated as "sanitary sergeant," in addition to policemen authorized by section 3 of the act of 1887.

2. Chapter 100 of the Session Laws of 1887, as amended by chapter 181 of the Session Laws of 1889, does not violate the provisions of section 1 of article 2 of the constitution; nor does it violate the provisions of section 17 of article 2 of the constitution; nor does it violate the provisions of sections 1 and 5 of article 12 of the constitution; nor is it obnoxious to the provisions of section 16 of article 2 of the constitution; but, on the contrary, is constitutional and valid. State v. Hunter, 38 Kan. 578, 17 P. 177; Woodruff v. Baldwin, 23 Kan. 350; State v Barrett, 27 Kan. 213.

Wells J., dissenting.

Error from district court, Shawnee county; Z. T. Hazen, Judge.

Action by D. M. Mitchell against the city of Topeka. Judgment for defendant, and plaintiff brings error.

Reversed.

Wm. R Hazen and W. E. Atchison, for plaintiff in error.

W. A. S. Bird, City Atty., and J. D., McFarland, for defendant in error.

OPINION

MAHAN, P. J.

The plaintiff seeks to recover from the defendant his salary as a member of the police force of that city during the months of April, May, and June, 1897, at the rate of $50 per month. He was appointed April 10, 1897, by the board of metropolitan police commissioners, as sanitary sergeant. The city refuses payment upon two grounds: First, that the police commissioners had no authority to make the appointment under the statute; and, second, that the mayor, by and with the consent of the city council, had, prior to the appointment of the plaintiff, appointed a sanitary sergeant, and had paid him for the services rendered by the appointee in that office. The real controversy between the parties is as to who had authority— the police commissioners or the mayor and city council— to appoint this officer. The contention upon argument was that the board of police commissioners appointed under chapter 100, Sess. Laws 1887 as amended by chapter 181, Sess. Laws 1889, had no authority to appoint the sanitary sergeant, or a policeman with that designation, under the provisions of the law creating the board, because the city— a city of the first class— did not have 40,000 inhabitants; that the authority of the board to appoint a sanitary sergeant, conferred by section 12, c. 181, Laws 1889, is restricted to police boards of cities of the first class having a population of over 40,000 inhabitants. That the plaintiff’s office was that of policeman of the city of Topeka there is no question. That the appointee of the mayor and council of the city of Topeka was also a member of the police force of the city there can be no controversy. Section 12 in terms does not restrict the power of the commissioners of police in the appointments therein named to cities of the first class having a population of 40,000 or over. It was the intention of the original act, as well as of the amendatory act, to put the entire police force, and everything pertaining to it, under the control of the commissioners of police, including the appointment of all officers connected therewith, from the police magistrate and chief of police down to the last officer in rank pertaining to that force. Section 6 of the original act says that it shall be the duty of the mayor and council of any city coming within its provisions to provide at its expense for the sessions of the board; to provide the police-court room, station house, prisons, and to furnish, warm, and light the same; to furnish food for prisoners; to provide for the monthly payment of the police judge, marshal, and policemen, on the certificate of the board as to the amount due each; also for such office expenses, record books, stationery, printing, telegraphing, badges, clubs, and the repair and cleaning of police buildings, as may be necessary,— it being the true intent and meaning of this act that all necessary expenses of the police department shall be borne by the city out of its general revenue fund, notwithstanding the government of such department is vested exclusively in said board. Section 7 says that neither the mayor nor the council, nor any officer appointed by them, shall have any government of the police force; that the city treasurer shall not pay any of the police force except upon the certificate of the board; that any person who shall in any manner interfere with or interrupt said board, or the police judge, marshal, or policemen, while in the legal performance of duty, shall, upon conviction thereof before the district court of the county wherein such city is located, be adjudged guilty of a misdemeanor, and shall be fined in any sum not less than $100 nor more than $1,000, or may be imprisoned in the county jail not less than 10 days nor more than 90 days, for each offense. Section 4 of the original act says that the board shall have the entire control of the police force of such city, its organization, government, and discipline, the entire control of all station houses, city prisons, patrol wagons, books, records, equipments, and all other property belonging to the police department, and shall audit all claims against said department, and shall certify the same to the mayor and council when correct. So that it was incompetent and in violation of the provisions of the statute for the mayor and council of the city of Topeka to attempt to employ or appoint any member of the police force of the city during the time that it was under the control of the board of police commissioners appointed by the executive council of the state. Section 12 of the act of 1889, amendatory of this original act, gives to the police board express authority to appoint a sanitary sergeant in addition to those provided for in section 3 of the original act. But counsel for defendant contend that this enactment is restricted to cities of the first class having a...