Selby v. City of Portland

• Citation: 14 Or. 243,12 P. 377
• Parties: SELBY v. CITY OF PORTLAND.
• Decision Date: 06 December 1886
• Court: Oregon Supreme Court

12 P. 377

14 Or. 243

SELBY v. CITY OF PORTLAND.

Supreme Court of Oregon

December 6, 1886

Appeal from circuit court, Multnomah county.

Yocum &amp Beebe, R. Williams, and W.S. Newbury, for appellant, Selby.

A.H. Tanner and Zera Snow, for respondent, City of Portland.

THAYER J.

The appellant commenced an action in said circuit court against the respondent, to recover an amount of salary alleged to be due him as police officer of said city, and for the salaries of some five other policemen which had been assigned to him. The appellant and the assignors referred to had been regularly appointed chief of police of the said city, captain, and ordinary policemen thereof, and each served in that capacity during a period of time. While they were so serving, the mayor of the city attempted to displace them, and appoint other policemen in their places, and, as they claim, unlawfully prevented them from performing their duties as such policemen; and the action was brought to recover their respective salaries after being so displaced and until the time of the commencement of the action. It appears that the appellant was displaced March 18, 1885. His assignor J.H. Lappeus, chief of police at the time, was displaced July 22, 1883; his assignor T.P. Luther, captain of police at the time, was displaced August 2, 1883; and his assignors D.W. Dobbins, J.E. Cramer, and A. Johnson, regular policemen at the time, were each and all displaced March 18 1885. The amount of all their salaries during the time claimed for aggregated $15,625.

The respondent interposed the following matters of defense to the complaint: That the salaries sued for were paid to parties other than the appellant and his assignors, without any knowledge on its part that they claimed the offices or the salaries; that appellant and his assignors were removed from their offices, and acquiesced in the removal; that appellant and his assignors abandoned the said offices, and neglected to perform the duties pertaining thereto; and that the appellant and his assignors were duly dismissed and discharged from their offices. The city charter in force at the time of these attempted removals provided that the mayor with the consent of a majority of the common council, might appoint a chief of police, one or more captains of police, and a suitable force of regular policemen; and remove or suspend any member of the police, including the chief and captains, for any cause which they might deem sufficient, to be stated in the order of removal or suspension. Chapter 8, § 72, Charter 1884, and the prior charters of the city.

It was not claimed in the case that the mayor, with or without the consent of the majority of the common council, had removed or suspended the appellant and his assignors beyond this: The mayor had, in certain messages to the common council, announced in each case that he had appointed a person to the same position they held, and generally stated that it was in the place of the one he intended to supersede, and requested the common council to confirm the appointment, which was done by a majority vote thereof in each of the cases. There was no cause stated for the removal, nor any order made in regard to it, unless the mayor's communication can be deemed such order. Upon the trial of the action in the circuit court, the judge thereof presiding ruled out all the defenses of the respondent except that of abandonment of the offices by the appellant and his assignors. That question the judge permitted to go to the jury, and instructed them that, if they found from the evidence that these parties did in fact abandon their offices, they would find for the respondent; whereupon the jury returned a general verdict in favor of the respondent, and against the appellant, and upon which the judgment appealed from was entered.

To the instruction referred to the appellant's counsel took an exception, and which is the main point relied upon in the case. Whether the instruction was correct or not, depends upon the evidence bearing upon the question of such abandonment. The appellant's counsel claimed that there was no evidence tending to prove an abandonment upon the part of the appellant and his assignors of the said offices; and I confess that I was very skeptical as to the probability of there being any such evidence. I presume instances have occurred in which such officers have abandoned their offices, but they have been so rare that it requires cogent proof to establish them as matters of fact. An officer, doubtless, might legally abandon his office when wrongfully ousted therefrom. His permanent removal from the territorial jurisdiction of the office would necessarily have that effect; but his failure to keep up a clamor for reinstatement could not certainly be urged as evidence of an abandonment.

The mayor, with the consent of a majority of the common council, had the appointment of these officers, and could remove or suspend them. He, with the consent of that body, did appoint other persons to supersede them, and they were formally installed and remained in those positions. What, therefore, could the appellant and his assignors do in the premises but submit to the action of those officials, or institute legal proceedings to annul their acts. I have read the testimony contained in the bill of exceptions, and do not think it tends to show an acquiescence in the removal or abandonment of the officers by the appellant and his assignors,--do not find that they ever proposed to relinquish them. It appears that the most that can be said in regard to their conduct is that they did not attempt to contend about going out of their places, or about being let in again. There is certainly nothing to show that they relinquished any right, or did anything to estop them from claiming the offices. If the mayor and common council had offered to restore them to their positions, and they had refused such restoration, there would be grounds upon which to claim an estoppel, but, as the case stood, I am unable to discover that there was any such ground.

But the respondent's counsel contends that the mayor and council had the right to remove appellant and his assignors from the offices held by them without cause, or having to state cause, in the order of removal; that such office belongs to the class provided for in section 2, art. 15, of the constitution of the state, and is to "be held during the pleasure of the authority making the appointment." It is questionable who "the authority making the appointment" is in this case. The authority itself is derived from the legislative department of the state, and the mayor and common council are restricted in the manner of its exercise; and the question is, whose pleasure is to be consulted,--the legislative, or the mayor and common council? The latter are intrusted with the appointment, but the authority emanates from the former, and it has expressed its pleasure by requiring the mode in question to be pursued when the authority is exercised. The mayor and common council are mere agents in the matter, and I think, beyond question, are subject to any restrictions their principal may deem proper to impose. I cannot see that the authority to remove or suspend policemen could have been exercised without a special cause, which was required to be stated in the order of removal or suspension. The provision is a salutary measure, and should be observed with strictness.

It looks very much to me as though the public confidence was abused in the transaction, and that the appellant and his assignors were shamefully trifled with; but it occurs to my mind that they neglected to take proper steps in the matter and have lost the remedy they could have invoked successfully. They might have commenced an action in the nature of a quo warranto against the persons designated to succeed them, and been reinstated in their positions; or, probably, they might have sued out a writ of review, obtained a reversal of the action of the mayor and common council in the affair, and been restored to their positions in that way. And it was held by the court of appeals of New York in Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, S.C. 7 N.E. 787, where a policeman of that city had been duly appointed to that office, and entered upon the performance of his duties, was attempted to be removed by the police commissioners, and upon certiorari the order of removal was reversed, and he was restored to his office, that he could recover against the city his salary which accrued between the time of the order of removal and the restoration, and without any abatement on account of earnings realized from his former trade, resumed during the...