Parrish v. City of St. Paul

• Decision Date: 29 November 1901
• Citation: 87 N.W. 1124,84 Minn. 426
• Parties: PARRISH v. CITY OF ST. PAUL. ADAMS v. CITY OF ST. PAUL
• Court: Minnesota Supreme Court

84 Minn. 426

87 N.W. 1124

PARRISH

v.CITY OF ST. PAUL.

ADAMS

v.CITY OF ST. PAUL

Supreme Court of Minnesota.

Nov. 29, 1901.

Appeals from district court, Ramsey county; Edwin A. Jaggard, Judge.

Actions by Edwin M. Parrish and J. Q. Adams against the city of St. Paul. Judgment for plaintiffs. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

1. Where no tenure of an office is fixed by law, and no provision is made for the removal of the incumbent, the power of removal is a necessary incident to the power of appointment.

2. But where, in such a case, the power of appointment to an office is vested in one officer, the appointee to be approved by another officer or official body, the incumbent may be removed by the appointment of his successor, but such appointment does not take effect until it is so approved, and until then the incumbent is entitled to discharge the duties of the office, and receive the salary therefor.

3. Rules applied in the construction of Sp. Laws 1889, c. 351, § 47, providing for the appointment by the mayor of the city of St. Paul of policemen, approved by the judges of the municipal court, for special attendance and duty in such court, and held, that the power of appointing and removing such policemen or bailiffs was not exclusively vested in the mayor, but in him and the judges of the court, the act of both being essential.

4. The provision of the city charter placing the police department in the control of the police board in no manner changes the prior law as to the appointment of such bailiffs, except to devolve upon the board the powers and duties in that respect exercised by the mayor. James E. Markham and A. J. Stobbart, for appellant.

Oscar Hallam and Ambrose Tighe, for respondents.

START, C. J.

An action was brought by each of the plaintiffs to recover from the defendant city $70 for salary for the month of August, 1900, as a policeman for special attendance and duty in the municipal court of the city. The pleadings, evidence, and decisions were substantially the same in each case. The trial court made its findings of fact and conclusions of law, ordering judgment for the plaintiff in each case for the amount claimed, and the defendant appealed from an order in each case denying its motion for a new trial. The cases were submitted together in this court, and will be here considered as one case. The facts found by the trial court, so far as here material, are substantially these: On the 8th day of July, 1898, the mayor of defendant city, under and by virtue of chapter 351 of Special Laws of Minnesota for the year 1889, and particularly section 47 thereof, duly appointed the plaintiff as policeman for special attendance and duty in the municipal court of the city of St. Paul. The judges of the municipal court thereupon duly approved the appointment. Thereupon the plaintiff duly accepted the appointment, and immediately entered upon the discharge of the duties of the position by virtue of such appointment and approval, and continued to discharge and perform the duties thereof up to and including the whole of the month of August, 1900. During all such time he was duly qualified for such position, and was in all respects eligible to fill and hold the same, and he faithfully performed the duties thereof. The city duly fixed the salary of the plaintiff at the sum of $840 per year, to be paid in monthly installments of $70 each. All of plaintiff's salary has been paid by the city except for the month of August, 1900, which has not been paid, although duly demanded. On the 8th day of August, 1900, the board of police of the city, duly appointed under and by virtue of the provisions of the charter of the city adopted by its electors May 1, 1900, by resolution attempted to remove plaintiff from his position, and on the same day, by resolution, attempted to appoint James H. Loomis and R. A. Vance as policemen for special attendance and duty in the municipal court. Neither the attempted removal of plaintiff nor the attempted appointment of James H. Loomis and R. A. Vance, or either of them, was ever approved by the judges of such court, and they were never notified of the attempted removal or appointments. The trial court upon these facts found as a conclusion of law, with others, that the plaintiff was during the month of August, 1900, the lawful incumbent of the position of policeman for special attendance and duty in the municipal court, and entitled to his salary for that month.

The defendant makes but one assignment of error, which is this: ‘The court erred in its order of May 29, 1901, denying the defendant's motion for a new trial, on the ground that its decision made and filed herein was not justified by the evidence, and was contrary to law.’ As there were several findings of fact, this assignment is insufficient to call in question the correctness of any of them. It only raises the question whether the findings of fact sustain the court's conclusions of law. Smith v. Kipp, 49 Minn. 119, 51 N. W. 656;Mahler v. Bank, 65 Minn. 37, 67 N. W. 655;Butler-Ryan Co. v. Silvey, 70 Minn. 507, 73 N. W. 406, 510. But, inasmuch as no point is made by plaintiff's counsel as to the assignment of error, and counsel on both sides have discussed the question whether the finding of the trial court that the plaintiff was appointed a policeman for special attendance and duty in the municipal court was sustained by the evidence, we have considered the question. Our conclusion is, and we so hold, that the finding is sustained by the evidence. It is true that the commission issued by the mayor to one of the plaintiffs, if considered by itself, without reference to the other...