Smith v. Bryan
| Decision Date | 30 January 1902 |
| Citation | 40 S.E. 652,100 Va. 199 |
| Parties | SMITH v. BRYAN, Mayor. |
| Court | Virginia Supreme Court |
POLICEMEN—REMOVAL—POWER OP MAYOR— STATUTE—RULES OP CONSTRUCTION.
1. A police officer is an official of the state, and not of the municipality, and is therefore not within Const, art. 6, § 20, relating to the removal of city officers.
2. A police officer is not within the charter of Roanoke City, § 54, authorizing the mayor to remove any municipal officer, whether elected by the qualified voters or by the council, he not being a municipal officer, and not being elected by the qualified voters or by the council.
3. A statute should be so construed as to give effect to every part thereof.
4. The construction put upon a statute of doubtful import when it first came into operation will, after lapse of time, and where it has not been changed by the legislature or judicial decision, be regarded as correct.
5. The practical construction given a statute by public officials and acted on by the people will, in cases of doubt, be regarded as decisive.
6. 'Where a statute fixing the duration of an official term is ambiguous, it must he construed so as to limit the term to the shortest period.
7. Under the charter of Roanoke City, § 60, providing that policemen "shall hold their respective positions during good behavior, or until they may be severally removed by the mayor, or by three-fifths vote of the couucil, after notice to and failure of the mayor to act, " the mayor, or city council in case of his failure to act on request, have an absolute power of removal, and are not limited to removals for cause.
Error to corporation court of Roanoke.
Mandamus by C. A. Smith against J. R. Bryan, mayor of Roanoke. Judgment for defendant, and petitioner brings error. Affirmed.
E. Lyle, Hoge & Hoge, and Scott & String-fellow, for plaintiff in error.
C. B. Moomaw, for defendant in error.
This controversy has arisen out of a denial by the hustings court of the city of Roanoke of the prayer of the petition of the plaintiff in error, C. A. Smith, for a peremptory writ of mandamus to compel the defendant in error, J. R. Bryan, mayor, to restore petitioner to the police force of that city, from which, as the petitioner alleges, he had been illegally discharged.
The evidence was not certified, but it appears from the pleading that the litigation involves the tenure of office of the plaintiff in error as a policeman. The solution of that question depends upon the proper construction of section 60 of the new charter of Roanoke City, which is as follows:
In the case of Burch v. Hardwicke, 30 Grat 24, 32 Am. Rep. 640, this court held that a police officer is an officer of the state, and not of the municipality in which he exercises his office.
It follows, therefore, that section 20, art. 6, of the constitution of Virginia, prescribing the powers and duties of a mayor, including the power to suspend and remove city officers, and designating the procedure in such case, has no application to city police.
It also appears that section 54 of the charter in question does not embrace policemen. Under the title "Mayor, " that section provides, among other things, that he shall have power to remove or suspend any municipal officer, whether he be elected by the qualified voters of the city or by the council,
This section, it will be observed, in terms applies to such municipal officers as are elected by the qualified voters of the city or by the council; and, as has been remarked, policemen are not municipal officers, nor are they elected by the qualified voters of the city or by the council, but are appointed by the mayor, and confirmed by the council. The question at issue is therefore not affected by either article 6, § 20, of the constitution, or by the provisions of section 54.
The part of section 60 of the charter to be interpreted is: "Such chief and policemen shall constitute the police force of said city, and shall hold their respective positions during good behavior, or until they may be severally removed by the mayor, or by three-fifths vote of the council, after notice to and failure of the mayor to act after having been requested to do so by the council."
It was insisted on behalf of plaintiff in error that by a proper construction of the foregoing provision his tenure to the office of policeman is during good behavior, and imports, as an essential element, nonremovability except for cause.
This would be true if the language...
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