Moores v. State ex rel. Shoop

• Decision Date: 08 April 1898
• Citation: 54 Neb. 486,74 N.W. 823
• Parties: MOORES, MAYOR, ET AL. v. STATE EX REL. SHOOP ET AL.
• Court: Nebraska Supreme Court

54 Neb. 486

74 N.W. 823

MOORES, MAYOR, ET AL.

v.STATE EX REL. SHOOP ET AL.

Supreme Court of Nebraska.

April 8, 1898.

Syllabus by the Court.

1. By section 169 of chapter 12a of the Compiled Statutes of 1897, the power to appoint and remove officers and members of the fire and police departments in cities of the metropolitan class is vested in the fire and police commissioners of such cities.

2. No member of the fire or police department in any such city can be discharged for political reasons.

3. Removals deemed necessary for the proper management, discipline, or more effective service of either the fire or police department must be made pursuant to such rules and regulations as may be adopted by the board of fire and police commissioners for that purpose.

4. Before an officer or member of either the police or fire department can be discharged for alleged misconduct, unfitness, dereliction of duty, or other cause affecting his character or standing as a public servant, charges must be filed against him, and he must be afforded an opportunity to be heard in his defense.

5. But the right of an officer of the police force or member of the fire department to defend against formal charges, within the meaning of the law, is a right to vindicate himself from an unjust accusation; not a right to show that the public welfare requires his retention in the public service, or that the revenues at the disposal of the board are adequate for the payment of his salary.

6. The membership of either the police or fire department may be reduced by the board on economic grounds; and, in such case, men may be dismissed from the service without a hearing, and without an opportunity being given them to show cause against the order of dismissal.

7. The transcript brought to this court should contain only so much of the record of the district court as is essential to a correct understanding of the case.

Error to district court, Douglas county; Scott, Judge.

Action in the name of the state, on the relation of William H. Shoop and others, for mandamus to Frank E. Moores and others, as members of the board of fire and police commissioners of Omaha. The writ made absolute, and respondents bring error. Reversed.

Norval, J., dissenting.

Wm. J. Connell, for plaintiffs in error.

McCoy & Olmsted, for defendants in error.

SULLIVAN, J.

The relators were police officers of the city of Omaha, and, being dismissed from service, applied to the district court of Douglas county for a writ of mandamus to compel the respondents, as members of the board of fire and police commissioners, to reinstate them. An alternative writ was issued, an answer was filed, and a trial had, which resulted in the allowance of a peremptory writ as prayed. The respondents complain of the judgment, and ask that it be reversed. The relators were dismissed from the police force, under the authority of the following resolution adopted by the board: “Whereas, the funds provided by the mayor and the city council to maintain the police department is wholly insufficient to pay the salaries of the present police force, and the continuance of the force now in the employ of the city will create an overlap in an amount exceeding the sum of $3,400, which is wholly unauthorized under the laws controlling the action of the board, it therefore becomes the duty of this board to dismiss such a number of officers and patrolmen as will bring the expenditures within the limit of the funds placed at its disposal. Therefore this board considers, finds, and declares that the proper management of said police force requires that the following officers and patrolmen be removed from their several offices, to wit: Sergeants, F. D. Mitchell and R. W. Chamberlain; detectives, E. H. Hemming and W. W. Cox; patrolmen, W. H. Shoop, R. A. Wilbur, James Kirk, and S. G. Hoff. It is therefore ordered that the foregoing officers and patrolmen be removed from their respective offices, to take effect upon and after September 30th.”

The contention of the relators is that the adoption of the foregoing resolution, and the action taken in pursuance thereof, were in violation of the provisions of section 169 of the city charter, which is in part as follows: “All powers and duties connected with and incident to the appointment, removal, government and discipline of the officers and members of the fire and police departments of the city, under such rules and regulations as may be adopted by the board of fire and police commissioners, shall be vested in and exercised by said board. * * * The chief of police and all other police officers, policemen and police matron, shall be subject to removal by the board of fire and police commissioners, under such rules and regulations as may be adopted by said board, whenever said board shall consider and declare such removal necessary for the proper management or discipline, or for the more effective working or service of the police department. No member or officer of the police or fire department shall be discharged for political reasons, nor shall a person be employed or taken into either of said departments for political reasons. Before a member of the police or fire department can be discharged, charges must be filed against him before the board of fire and police commissioners and a hearing had thereon, and an opportunity given such member to defend against such charges, but this provision shall not be construed to prevent peremptory suspension of such member by his superiors in case of misconduct or neglect of duty or disobedience of orders.” This statute plainly vests the power to appoint, remove, and exercise a general supervision over police officers in the board of fire and police commissioners of the city. It provides that the members of the police department shall be subject to removal whenever, in the judgment of the board, such removal shall be necessary for the proper management, discipline, or more effective service of the department. It then declares that no officer shall be discharged for political reasons, nor without a formal accusation filed with the board, a hearing given, and an opportunity afforded such officer to make a defense.

The respondents having been dismissed from the service without a hearing or an opportunity to be heard, the question, and the only one presented by the record for decision, is whether the action of the board was forbidden by the above-quoted provision of the charter. It is not claimed that the dismissal was for any reason other than the one stated in the resolution, and the respondents, in their answer, alleged, and at the trial offered to prove, that the motive there assigned was the true and only motive for the action taken. But relators insisted, and the trial court ruled, that they were entitled to a hearing, regardless of the grounds upon which the board proceeded. We cannot accept this view of the law. These officers were not discharged, within the meaning of the term as used in the statute. The places which they filled were abrogated. They were not dismissed to make room for others, or because they were deemed unfit to be retained in the service. They lost their places because their places ceased to exist. The matters recited in the resolution as the basis for the action of the board can by no just interpretation be held to constitute a charge against these men. It imputes to them no official misconduct or dereliction of any kind; no unfitness or want of capacity. It touches in no way the private or official character of any of them. That the city authorities failed to make an appropriation adequate to the requirements of the police department is not a charge against officers whose services are dispensed with for...