State ex rel. Dickson v. Williams

• Decision Date: 17 October 1894
• Citation: 60 N.W. 410,6 S.D. 119
• Parties: STATE ex rel. DICKSON v. WILLIAMS, Mayor, et al.
• Court: South Dakota Supreme Court

60 N.W. 410

6 S.D. 119

STATE ex rel. DICKSON v. WILLIAMS, Mayor, et al.

Supreme Court of South Dakota

October 17, 1894

Syllabus by the Court.

1. By the terms of section 5, art. 3, c. 37, Laws 1890, which provides, that "the mayor shall have power to remove any officer appointed by him, whenever he shall be of the opinion that the interests of the city demand such removal, but he shall report the reasons for such removal to the council at its next regular meeting," power is conferred upon the mayor of a city incorporated under that act to remove any officer of the city appointed by him "whenever he shall be of the opinion that the interests of the city demand such removal;" and the last clause of the section, which requires the mayor to report "the reasons for such removal to the council at its next regular session," does not constitute a qualification or limitation upon such power of removal by the mayor.

2. The city council of a city incorporated under the Laws of 1890 providing for the incorporation of cities, possesses only such powers in appropriating the money of the city as are conferred upon it by the act under which it is incorporated.

3. The mayor of the city of Sioux Falls, on May 14, 1894, caused to be served upon D., the chief of police of said city, an order, signed by him as such mayor, removing said D. from his said office of chief of police, reciting therein that in his opinion the interests of the said city demanded the removal of said D. from the said office; but the city council of said city, notwithstanding the action of the mayor, allowed, and ordered to be issued to said D., city warrants for his salary as such chief of police, for the months of May and June 1894. Held, that on May 14th the said D. was legally removed from his said office as chief of police, and that thereafter he had no legal claim upon the city for such salary. Held further, that the allowance to D. made by the city council for salary after May 14, 1894, was not for the payment of any debt or legal expense of the city, nor for any corporate purpose, and that the allowance to D. of such salary was made without lawful authority, and was not binding upon the city.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Application by the state of South Dakota, on relation of Joseph M Dickson, for a writ of mandamus to compel Roy Williams, as mayor, and Frank L. Blackman, as city auditor, of the city of Sioux Falls, S. D., to issue warrants in payment of relator's salary as chief of police of such city. From a judgment granting a peremptory writ of mandamus, defendants appeal. Reversed.

C. P. Bates,

for appellants. Orr & Lawshe (T. B. McMartin, of counsel), for respondent.

CORSON P. J.

On July 18, 1894, Joseph M. Dickson presented to the circuit court of Minnehaha county an affidavit in which he states that on September 3, 1893, he was duly appointed chief of police for the city of Sioux Falls, and that he had continued to perform the duties of said office, and was at the time of making said affidavit the chief of police of said city; that the defendant Roy Williams was the mayor of said city, and that the defendant Frank L. Blackman was the city auditor; that on June 8, 1894, the city council of said city allowed and ordered a city warrant to be issued to him for the sum of $70, for his salary as chief of police for the month of May, 1894, and that on July 2d the said city council allowed and ordered to be issued to him a similar city warrant for his salary for the month of June, 1894; that he had duly demanded of the said mayor and city auditor the said warrants, but that they refused to comply with said demand, and refused to issue to him said warrants. And he concluded with the usual prayer, that the court issue a peremptory writ commanding said defendants to issue to him said city warrants. The circuit court thereupon issued its alternative writ of mandamus, commanding the said defendants to issue and deliver to the plaintiff the said city warrants as demanded, or show cause, etc. To this alternative writ the defendants made return and answer, in which, after admitting certain allegations in the writ, they allege, among other things, the following facts: "These defendants allege that the said Roy Williams now is, and ever since the 7th day of May, 1894, has been, the duly elected, qualified, and acting mayor of said city of Sioux Falls, and that the said Frank L. Blackman now is, and ever since the 5th day of June, 1894, has been, the duly appointed, qualified, and acting city auditor of the said city of Sioux Falls. These defendants further allege that on the 14th day of May, 1894, the said Roy Williams, as mayor of said city of Sioux Falls, was of the opinion that the interests of said city demanded the removal of said Joseph M. Dickson from said office of chief of police of said city, and thereupon, and on said date, the said Roy Williams, as such mayor as aforesaid, duly removed the said Dickson from said office of chief of police, pursuant to the powers conferred on him as such mayor by the provisions of article 3 of chapter 37 of the Laws of 1890, and that ever since said date the said Dickson has not been either the qualified or acting chief of police of said city, and has not been an officer of said city, or employed by said city in any manner or capacity whatever. *** These defendants further allege that on or about the 8th day of June, 1894, the said Frank L. Blackman, as city auditor of the city of Sioux Falls, drew and countersigned a warrant on the treasurer of said city, in the usual form, payable to said Dickson, for $29.35, that being the amount due him from said city for salary as chief of police from the 1st day of May, 1894, to the 14th day of May, 1894, when he was removed from said office as aforesaid, and that the said Roy Williams, as mayor of said city, signed said warrant on or about June 8, 1894, which said warrant is now in the office of said city auditor, to be delivered to said Dickson on demand; and these defendants further allege that the said sum of $29.35 is the only amount due or owing by said city to said Dickson for salary as chief of police of said city during the time he held said office, and that the said city is not, and was not on either June 8, 1894, or July 2, 1894, indebted to said Dickson in any sum exceeding $29.35, the amount for which said warrant was issued by said mayor and city auditor as aforesaid. These defendants further allege that the amount for which said warrants were ordered drawn by said city council as aforesaid, in excess of the said sum of $29.35, was not a legal charge against said city, and that said warrants were not ordered issued for the purpose of providing for the payment of any debt or expense of said corporation, or for any corporate purpose whatever, and that the said city council, in ordering the issuance of said warrants as aforesaid, exceeded its jurisdiction and the powers conferred upon it by statute." The notice of removal, served upon the plaintiff on the 14th day of May, 1894, reads as follows: "Sioux Falls, S. Dak., May 13, 1894. Please to take notice that under and by virtue of the power in me vested as mayor of the city of Sioux Falls, South Dakota, and being of the opinion that the interests of the city demand your removal from the office of chief of police of said city, I have removed and do hereby remove you from the office of chief of police of Sioux Falls, South Dakota. To Joseph M. Dickson. Roy Williams, Mayor of the City of Sioux Falls, S. D."

The affidavit and pleadings are very full and specific, but their great length precludes us from giving more than the foregoing summary of them. The case was tried by the court without a jury, and it found its facts and stated its conclusions of law, from which we only deem it necessary to copy in this opinion the following findings of fact and conclusions of law: "(7) That said defendant Roy Williams, mayor of said city, on the 14th day of May, 1894, did serve upon said plaintiff as relator a writing in which it was recited that the said mayor was of the opinion that the interest of said city demanded the removal of said Joseph M. Dickson from the office of chief of police of said city, and whereby said mayor notified the relator, Dickson, that he had removed and did thereby remove him from the office of chief of police of said city of Sioux...