State v. City of Butte
| Decision Date | 14 December 1923 |
| Docket Number | 5356. |
| Citation | 221 P. 524,69 Mont. 232 |
| Parties | STATE EX REL. DWYER v. MAYOR OF CITY OF BUTTE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Mandamus by the State of Montana, on the relation of Mike J. Dwyer against the Mayor of the City of Butte (James G. Cocking incumbent) a municipal corporation, to compel reinstatement of relator to the position of lieutenant of police. From an order denying writ, relator appeals. Judgment affirmed.
N. A. Rotering and A. C. McDaniel, both of Butte, for appellant.
J. T. Andrew and F. E. Blodgett, both of Butte, for respondent.
In mandamus. Relator brought this proceeding to compel the mayor of the city of Butte to reinstate him in the position of lieutenant of police, which he had held for a number of years prior to August 16, 1921. On that day the mayor reduced him to the grade of patrolman. As a result relator was compelled to leave his office in the city hall, put on a uniform, and mingle with the street life of the city. Besides, he suffered diminution of salary. So he sought relief at law. The court entered judgment against him, whereupon he moved for a new trial, which was denied. Then he appealed to this court.
1. The position to which he seeks reinstatement was a creation of Ordinance No. 825 of the city of Butte, approved June 25, 1908. This ordinance was one of several, passed pursuant to the Metropolitan Police Law, which created for the city of Butte a pretentious police department. Section 1 of 825 provided for a chief of police, captain of police, lieutenant of police, desk sergeant, chief city jailer, two assistant city jailers, three patrol drivers, and such patrolmen as might be required.
The mayor's action of which relator complains was based upon Ordinance 1682, which was passed July 31, 1920, and approved by the mayor August 4th following. This ordinance in terms repealed 825 and abolished several offices, including that of lieutenant of police. Section 1 of 1682 reads as follows:
"There is hereby established and created an executive department of the municipal government of the city, which shall be known as the police department, and shall embrace the mayor, the chief of police and assistant chief of police and such other employés as officers, to be designated as patrolmen, as may be required."
The first position taken by counsel for relator is that, when one is appointed to an office under the Metropolitan Police Law, he has a life tenure, unless legally removed for cause, or unless for economical reasons the office is abolished. Hence it is said, it being admitted relator was not removed "for cause," and as it has been neither pleaded nor proved that the office was abolished for reasons of economic necessity, the ordinance is nugatory as to relator. The Metropolitan Police Law was designed to reward faithful service upon the life tenure principle. It never was intended that this principle should be extended to permit the creation by the lawmaking power of an office, which that power might not abolish whenever the necessity which called the office into being ceased to exist. It was not designed to impose officers for life upon the public irrespective of the public needs. In State ex rel. Breen v. Stodden, 58 Mont. 116, 190 P. 991, it was observed that in communities which depend largely upon mining industries, fluctuations in population and prosperity are not of unusual occurrence. The same thing is true, to some extent, with respect to all large industrial centers. Periods of heavy depression in business, resulting from whatever cause, if long continued, are followed by loss of population, and the tightening of private and public purse strings. The need for police protection varies with these changing periods. Sometimes it is necessary to increase, at other times to decrease, the police force. This the city council has ample power to do as public exigency may require. State ex rel. Rowling v. City of Butte, 43 Mont. 331, 117 P. 604. The council may also change the plan of operation governing the police force. They are created to meet the needs of the city, and may be abolished when the need for them, or any of them, ceases. The intent of the law is that, so long as the office exists, a worthy incumbent thereof shall not be ousted because of political changes in the city administration, or from motives of favoritism. State ex rel. Dwyer v. Duncan, 49 Mont. 54, 140 P. 95.
It is true that the council may not, by subterfuge, abolish an office in name but continue it in fact, thus ousting the rightful occupant and at the same time placing another in his stead (State ex rel. Breen v. Stodden, supra), but no such condition exists here.
It was not necessary for the council to set forth in an ordinance the purpose sought to be attained by its passage. At the start the court will presume the ordinance valid. In the absence of proof to the contrary, it will be presumed that a necessity for its passage existed. So it was not incumbent upon the mayor to either plead or prove the necessity which impelled the council to enact it.
The evident purpose of Ordinance No. 1682 was to cut down the size of the police force and to place it upon a more economical financial basis. Instead of a chief of police, captain of police, lieutenant of police, and the other officers mentioned, the police department provided for in Ordinance 1682 embraced only the mayor, chief of police, assistant chief of police, and the patrolmen. The record indicates that the chief of police and assistant chief of police, under the new ordinance, perform all of the duties of the chief of police, captain of police, and lieutenant of police under Ordinance 825.
Apparently the purpose of the lawmaking body of the city of Butte was to reduce its police force within limits commensurate with the city's income. A considerable financial saving was effected by the reorganization and reduction of the police force, and, so far as the record discloses, without any impairment in its efficiency. A laudable purpose seems to have been effected. It is true that...
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