State v. Dryburgh
| Decision Date | 19 December 1921 |
| Docket Number | 4929. |
| Parties | STATE EX REL. DALY v. DRYBURGH, MAYOR OF CITY OF HELENA, ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied Jan. 16, 1922.
Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.
Application by the State, on the relation of Thomas J. Daly, for a writ of mandamus against John Dryburgh, as Mayor of the City of Helena, and others, to compel them to reinstate relator as Chief of the Fire Department of the City. Writ awarded, and defendants appeal. Reversed and remanded.
E. C Day, of Helena, for appellants.
Edward Horsky, of Helena, for respondent.
This is an appeal from a judgment of the district court of Lewis and Clark county entered in a mandamus proceeding instituted by the plaintiff to compel the city council of Helena to reinstate him as chief of the fire department of the city of Helena.
Upon the filing and presentation of plaintiff's affidavit to the court, an alternative writ was issued, which the defendants moved to quash. This motion was denied, the defendants refused to plead further, and, their default having been duly entered, evidence was introduced by the plaintiff in support of his application. Judgment was entered September 1, 1921, against the city of Helena in favor of the plaintiff for the sum of $2,450 and costs, with interest thereon, together with $500 allowed for attorney's fees and awarding to the plaintiff a peremptory writ of mandate commanding and requiring the defendants forthwith to reinstate the plaintiff in his office, position, place, and right as chief of the fire department of the city of Helena and all duties, privileges, and emoluments of such office, position, or place. From the plaintiff's application for the writ it appears that the city of Helena, at all of the times mentioned, was, and now is, a municipal corporation organized and existing under the laws of the state, having a population of over 10,000 and less than 25,000, being a city of the first class.
Prior to July, 1915, the city was conducted by an aldermanic form of government; the mayor being elected by the electors of the entire city and the aldermen by those of the several wards. In July, 1915, the commission form of government, authorized by state law, was adopted, and ever since then the affairs of the city have been governed and controlled by a city council composed of three councilmen, consisting of the mayor and two others.
The plaintiff is a citizen of the United States and a resident qualified elector of the city of Helena. In August, 1897, he was appointed to serve as an active paid "call" fireman (sometimes designated "volunteer fireman") in the fire department of the city, and thereafter served in that capacity until the 16th day of May, 1904, when he was appointed a regularly paid fireman and served as such until May 7, 1906, on which latter date the mayor, with the advice and consent of the city council, duly and regularly appointed him for a probationary term of six months as a fireman, and thereafter, on March 23, 1908, after the expiration of such probationary period, the mayor nominated, and with the consent of the city council, under the then existing aldermanic form of government, duly appointed, the plaintiff a member of the fire department and the chief thereof, to hold during good behavior and while possessed of the physical ability to perform his duties, all in accordance with the statutes of the state and the ordinances of the city in force and effect. On the first Monday in May, 1918, under the commission form of government, the city council reappointed the plaintiff as chief of the fire department, so that continuously from the 7th day of May, 1906, until the 19th day of July, 1920, he was the duly appointed, qualified, and acting chief of such department; the latter date being that on which the city council removed, or attempted to remove, him from his position as such chief, and it appears that no successor has been appointed to succeed him in such position. On the 19th day of July, 1920, a motion was, by the city council, adopted removing the plaintiff as chief of the fire department, and a copy thereof duly served on him by the city clerk, which motion reads as follows:
"I move that, whereas the city council deems it to the best interests of the fire department of the city that there be a reorganization of the department, and that a change be made in the office of chief of the fire department, therefore, be it resolved, that Thomas J. Daly be, and he is hereby removed from the office of chief of the fire department, effective as of this date, and that he be restored to the roll of members of the fire department."
Prior to February 21, 1921, no charges of any kind had ever been brought or preferred against the plaintiff as a member or chief of the fire department, and on that date a motion was made and adopted by the city council, which is set forth at length in the notice thereof directed to and served upon the plaintiff, reading as follows:
"Helena, Montana, February 21, 1921.
Mr. Thos. J. Daly, Helena, Montana--Dear Sir: At a meeting of the city council held on the above date the following motion was adopted:
I move that Thos. J. Daly be notified that he has been suspended as a member of the Helena fire department of the city of Helena, for neglect of duty in failing to report for service at any time since his removal as chief of said fire department, occurring on July 19, 1920; such action being taken by authority of paragraph 'C' of section 25 of the Commission Form of Government Act, and that the city clerk be directed to notify Mr. Daly of the above action.
After receipt of such notice, on February 25, 1921, the plaintiff duly filed with the city council his notice of appeal from the order suspending him. The charges against the plaintiff were not presented at the next meeting of the city council after the meeting at which such suspension order was made, nor at any other time, nor at all, and no hearing has ever been had on the plaintiff's appeal. The plaintiff labors under no physical disability, has protested against his attempted removal as fire chief, and has at all times been willing and in readiness to perform his duties as a member and chief of the fire department. Appended to plaintiff's affidavit and as a part thereof is a copy of Ordinance No. 708 of the city of Helena, passed and adopted February 17, 1908, which has ever since its enactment been in full force and effect, except only as modified by Ordinance No. 1013, increasing the salaries of the chief and other members of the fire department.
This appeal presents but a single question decisive of the controversy, viz.: What is the proper mode of procedure for the removal of the chief of the fire department of the city of Helena under the statutes of the state and the ordinances of the city?
As to the propriety of the dual form of judgment entered in this case, we express no opinion, as no question is raised by the parties with respect thereto.
Section 3326 of the Revised Codes of 1907 provides that the city council of cities and towns shall have power to establish a fire department and to prescribe and regulate its duties. Section 3328 reads as follows:
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