State v. District Court of Tenth Judicial Dist. in and for Fergus County

• Decision Date: 11 March 1930
• Docket Number: 6656.
• Citation: 285 P. 928,87 Mont. 108
• Parties: STATE ex rel. v. DISTRICT COURT OF THE TENTH JUDICIAL DISTRICT IN AND FOR FERGUS COUNTY et al. MUELLER et al.
• Court: Montana Supreme Court

285 P. 928

87 Mont. 108

STATE ex rel. MUELLER et al. v. DISTRICT COURT OF THE TENTH JUDICIAL DISTRICT IN AND FOR FERGUS COUNTY et al.

No. 6656.

Supreme Court of Montana

March 11, 1930

Original application by the State, on the relation of Oscar O. Mueller and another, for writ of prohibition prayed to be directed to the District Court of the Tenth Judicial District of the State of Montana, in and for the County of Fergus, and Edgar J. Baker, one of the Judges thereof.

Peremptory writ issued.

C. A Spaulding, of Helena, Jack Briscoe, J. E. McKenna, and Stewart McConochie, all of Lewistown, Howard Gee, of Winifred, and Rufus Hopkins, of Lewistown, for respondents.

PER CURIAM.

This is an application for a writ of prohibition to be directed to the district court of Fergus county and Hon. Edgar J. Baker one of its judges. The petition shows that Oscar O. Mueller is the mayor of the city of Lewistown, and H. M. Traywick is a member of the police commission of the city, his colleagues on the commission being C. L. Covell and H. R. Hampton; that on February 3 the mayor filed with the police commission charges against E. W. Ray, a police officer and the chief of police, accusing him of misconduct in his office and neglect of the duties thereof. The commission immediately duly gave notice to Ray, summoning him to answer the charges on February 13, 1930. On February 12 Ray applied to Judge Baker for a writ of prohibition to restrain Traywick from sitting as a member of the commission during the trial.

The basis of Ray's application is, as is disclosed by his affidavit, that Traywick is prejudiced against him. It is set forth, among other allegations, that Traywick was a prime mover in having the charges filed; that Traywick is personally hostile to Ray; that, upon being asked by one Barney "what he was going to convict E. W. Ray on," Traywick replied: "On the evidence and what we personally know about him." The judge entertained the application and issued an alternative writ of prohibition restraining Traywick from acting in the matter until the further order of the court, and requiring him to show cause on February 18th why he should not be permanently restrained from so doing. On February 18th Ray sought permission to file an amended and supplemental petition in support of his application for a writ of prohibition, and the matter was continued until the next day, when, the matter having been argued by respective counsel, the court took it under advisement, with direction that the restraining order remain in full force pending the consideration of the cause.

On the 21st of February Mueller and Traywick made application to this court for a writ of prohibition to restrain the district court of Fergus county and Judge Baker from interfering with Traywick in the performance of his duties as a member of the commission. In the application filed in this court, after allegations from which the foregoing information appears, it is alleged that Covell and Hampton, a majority of the commission, not being under restraint, conducted the trial of Ray, heard the evidence offered by the respective parties viewed the witnesses and examined the documentary evidence; that Traywick, not being restrained by the writ from listening to and hearing the evidence submitted to the commission, proceeded to and did sit and hear all and singular the evidence submitted by all parties in the proceeding, viewed the witnesses and the documentary evidence; and that he is now in a position to enter into deliberations with his colleagues upon the commission without bias and prejudice, and to join them in rendering a decision upon the merits of the controversy, and will do so if the restraint is removed; and that it is unlikely that any decision of the commission can or will be reached until he joins his colleagues in the consideration of the evidence submitted.

Upon the application filed by relators we issued an order requiring respondents to annul the alternative writ of prohibition or to show cause why they should not do so, on March 3, 1930. We did not issue a restraining order. Judge Baker has not taken any further action in the proceeding pending before him, so far as we are advised. But at the time appointed respondents interposed a motion to quash the order to show cause, and we have had the benefit of exhaustive arguments by opposing counsel.

1. This controversy takes its rise from the Metropolitan Police Law (R. C. 1921, §§ 5095-5108, as amended) which the city of Lewistown has adopted.

Section 5100, R. C. 1921, as amended by section 4 of chapter 119 of the Laws of 1923, provides that it shall be the duty of the police commission to hear, try, and decide all charges brought by any person or persons against any member or officer of the police department, "including any charge that such member or officer is incompetent, or by age or disease, or otherwise, has become incapacitated to discharge the duties of his office, or has been guilty of neglect of duty, or of misconduct in his office, or of conduct unbecoming a police officer or has been found guilty of any crime, or whose conduct has been such as to bring reproach upon the police force." Any charge brought against a member of the police force must be in writing, in the form required by the commission, and a copy thereof must be served upon the accused officer or member at least three days before the time fixed for the hearing of the charge. It is the duty of the commission, at the time set for hearing the charge against the police officer, to forthwith proceed to hear, try, and determine the same, according to the rules of the commission. The accused shall have the right to be present at the trial in person and by counsel and to give evidence in his defense. All trials shall be open to the public. At the conclusion of the hearing or trial the commission must decide whether the charge is or is not proven and it has the power by a decision of the majority of the commission to discipline, suspend, remove, or discharge any officer who shall have been found guilty of the charge filed against him. The action of the commission, however, shall be subject to modification or veto by the mayor, made in writing, giving the reasons therefor, which shall become a permanent record of the commission. When a charge against a member of the police force is found proven by the board and is not vetoed by the mayor, the mayor must enforce the decision of the board, unless he modifies it, "and such decision or order shall not be subject to review by any Court on a question of fact." The district court of the proper county shall have jurisdiction in a suit brought by the accused "to determine whether the essential requirements of law as to the method of trial have been complied with, but no suit to review such hearing or trial or for re-instatement to office shall be maintained unless the same is begun within a period of sixty days after the decision of the Police Commission or order of the Mayor has been filed with the city clerk. * * *"

There is no inherent right of indefinite tenure in the office of policeman. The Metropolitan Police Law has fixed the conditions under which a policeman may be appointed, may continue to enjoy the office, and may be...