Redell v. Moores

• Decision Date: 04 December 1901
• Citation: 63 Neb. 219,88 N.W. 243
• Parties: REDELL v. MOORES ET AL.
• Court: Nebraska Supreme Court

63 Neb. 219

88 N.W. 243

REDELL

v.MOORES ET AL.

Supreme Court of Nebraska.

Dec. 4, 1901.

Syllabus by the Court.

1. Where portions of a statute are held unconstitutional, if the remainder is not so connected with such portion as to be incapable of separation, and the remainder is a complete act, and not dependent upon the part held invalid, the latter alone will be disregarded, and the remainder upheld, except in cases where it is apparent that the rejected part was an inducement to the adoption of the remainder.

2. In the construction of a statute, courts will take judicial notice of events which are generally known, and matters of common knowledge within the limits of their jurisdiction.

3. The power to create a municipal corporation is vested in the legislature, and implies the power to create it with such limitations as that body may see fit to impose, and to impose such limitations at any stage of its existence.

4. The legislature may by statute confer upon the governor the power to appoint members of the board of fire and police commissioners of cities of the metropolitan class. State v. Moores, 76 N. W. 175, 55 Neb. 480, 41 L. R. A. 624, overruled.

Commissioners' opinion. Department No. 3. Appeal from district court, Douglas county; Estelle, Judge.

Action by John Redell against Frank E. Moores and others. Judgment for plaintiff, and defendants appeal. Reversed.

Norval, C. J., dissenting.

W. J. Connell, for appellants.

Wright & Stout, for appellee.

ALBERT, C.

This action was brought in the district court of Douglas county by John Redell, chief of the fire department of the city of Omaha, against Frank E. Moores and others, constituting the board of fire and police commissioners of that city, to restrain the defendants from hearing and determining certain charges filed with said board against the plaintiff, and from removing or suspending him from his said office. The trial court found for the plaintiff, and entered a decree accordingly. The defendants bring the case here on appeal.

The sole question presented by the appeal is whether the board of fire and police commissioners have authority to hear and determine the charges filed against the plaintiff, and to remove or suspend him from the office of chief of the fire department in case its finding on said charges should be adverse to him. The determination of that question involves the constitutionality of section 169, c. 12a, of the Compiled Statutes. That section is a part of an act passed by the legislature in 1897, entitled “An act incorporating metropolitan cities, and defining, prescribing and regulating their duties, powers and government,” and to repeal a similar act passed in 1887. The act is too long to set out at length, so it must suffice to say, taken as a whole, it provides a complete scheme for the government of cities of the metropolitan class. The sections most pertinent to the present inquiry are as follows:

“Sec. 166. In each city of the metropolitan class there shall be a board of fire and police commissioners, to consist of the mayor, who shall be ex-officio chairman of the board, and four electors of the city who shall be appointed by the governor.

Sec. 167. Immediately on the taking effect of this act the governor shall appoint for each city governed by this act four commissioners, not more than two of whom shall be of the same political faith or party allegiance, one of whom shall be designated to serve until the first Monday of April, 1898, and one to serve until the first Mondayof April, 1899, and one to serve until the first Monday of April, 1900, and one to serve until the first Monday of April, 1901, and on the last Tuesday of March in 1898, and on the same day in each year thereafter, the governor shall appoint one commissioner in each city governed by this act, to take the place of the commissioner whose term of office expires on the first Monday in April following such appointment, and those so appointed to succeed others shall serve for the term of four years following the first Monday in April after their appointment, except where appointments are made to fill vacancies, in which cases those appointed shall serve the remainder of term of the persons whose vacancies they are appointed to fill. Whenever a vacancy shall occur in any board of fire and police commissioners either by death, resignation, removal from the city or any other cause, the governor shall appoint a commissioner to fill such vacancy.

Sec. 168. No person shall be appointed a police commissioner who is engaged in the sale of malt, spirituous or vinous liquors, or who is engaged in the business of dealing in tobacco or articles manufactured therefrom, or who is agent for any fire insurance company or companies or interested therein, or in the business of soliciting fire insurance, or who shall have been engaged in any such calling or business within one year previous to the date of appointment. No person shall be qualified to hold the office of police commissioner, while he holds any county, city or school district office. The governor may remove any of said commissioners for misconduct in office, or should they, or any of them, become disqualified to act as such commissioner. Any citizen of the city may file with the governor written charges against any commissioner he may deem guilty of misconduct in office and the governor shall, within a reasonable time, investigate the same upon testimony to be produced before him and shall make such findings as to the truth or falsity of such charges as in his judgment such testimony warrants, and in case such charges are adjudged by him to be sustained by the evidence he shall at once remove the commissioner so found guilty and appoint another qualified to fill the vacancy thus caused. The governor, when sitting to investigate charges preferred against a commissioner, shall have full power and authority to compel the attendance of witnesses and the production of books and papers, and he may hold such meeting at the most convenient place in the state for the purpose of such investigation. In making all appointments, either to fill vacancies or otherwise, he shall so appoint that not more than two members of the fire and police commissioners shall be of the same political faith or party allegiance.

Sec. 169. 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 department 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. A majority of said board shall constitute a quorum for the transaction of business. Before entering upon their duties each of said officers shall take and subscribe an oath, to be filed with the city clerk, faithfully, impartially, honestly and to the best of his ability, to discharge his duties as a member of said board, and that in making appointments or considering promotions, or removals, he will not be guided or actuated by political motives or influences, but will consider only the interest of the city, and the success and effectiveness of said department. The board of fire and police commissioners shall have power and it shall be the duty of said board, to appoint a chief of the fire department, and such other officers of the fire department, as may be deemed necessary for its proper direction, management and regulation, all of whom shall be electors of such city, and under such rules and regulations as may be adopted by said board. Said board may remove such officers or any of them, whenever said board shall consider and declare such removal necessary for the proper management or discipline or for more effective working or service of said department. It shall be the duty of policemen to make a daily report to the chief of police of the time of lighting and extinguishing of all public lights and lamps upon their beats, and also any lamp that may be broken or out of repair. They shall also report to the same officer any defect in any sidewalk, street, alley or other public highway, or the existence of ice or dangerous obstructions on the walks or streets, or break in any sewer, or disagreeable odors emanating from inlets to sewers, or any violations of the health laws or ordinances of the city. Suitable blanks for making such reports shall be furnished to the chief of police by the chief electrician and health commissioner. Such reports shall be by the chief of police transmitted to the city electrician or health commissioner as shall be proper, and in case of violation of law or ordinance the policeman making report shall report the facts to the city prosecutor. The board of fire and police commissioners shall employ such firemen and assistants, as may be proper and necessary for the effective service of this department, to the extent and limit that the funds provided by the mayor and council for that purpose will allow. The board of fire and police commissioners shall have the power, and it shall be the duty of said board, to appoint a chief of police, and such other officers and policemen, all of whom shall be electors of such city, to the extent that funds may be provided by the mayor and council, to pay their salaries, and as may be necessary for the proper protection and efficient policing of the city, and as may be necessary to protect citizens and property, and maintain peace and good order. The board may appoint such number of police matrons, not to exceed two, whose duty shall be defined by the police 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...