State v. Edwards

• Citation: 99 P. 940,38 Mont. 250
• Parties: STATE ex rel. QUINTIN v. EDWARDS, Mayor. [d]
• Decision Date: 08 February 1909
• Court: United States State Supreme Court of Montana

99 P. 940

38 Mont. 250

STATE ex rel. QUINTIN v. EDWARDS, Mayor. ^[d]

Supreme Court of Montana

February 8, 1909

Appeal from District Court, Lewis and Clark County; W. R. C Stewart, Judge.

Application by the State, on the relation of Moses Quintin, for a writ of mandamus against Frank J. Edwards, as mayor of the city of Helena. From a judgment for defendant, relator appeals. Reversed and remanded.

Massena Bullard and W. T. Pigott, for appellant.

Edward Horsky, for respondent.

SMITH J.

This is an appeal from a judgment of the district court of Lewis and Clark county entered in favor of the respondent after the court had sustained a general demurrer to the affidavit for a writ of mandate, and had granted a motion to quash an alternative writ theretofore issued. The affidavit filed by the relator alleges, in substance, as follows: Since May 1 1908, the respondent, Frank J. Edwards, has been, and still is, mayor of the city of Helena, a city of the first class. The relator, Quintin, was a patrolman of the city at the time of the passage of chapter 136, p. 344, Laws 1907, commonly called the "Police Commission Bill," approved March 7, 1907. On July 6, 1907, the then mayor appointed relator who was duly qualified, to the position of patrolman on the police force for the probationary term of six months. Thereafter relator successfully passed examination by the "examining and trial board of the police department," and received from it a certificate that he was qualified for appointment upon the police force, and on March 23, 1908, the then mayor duly appointed him to the position or place of policeman or patrolman to hold during good behavior or until by age or disease he should become permanently incapacitated, whereupon he at once qualified and took the oath required of members of the police force, and ever since has been, and still is, a member of the force, to wit, a policeman or patrolman, and has not become incapacitated and no charge whatsoever has been brought against him. The respondent mayor did on June 3, 1908, unlawfully and contrary to the statute in that behalf enacted, and without power or jurisdiction so to do, discharge him from the force, and under color of the office of mayor ordered that he be forthwith discharged and precluded from using or enjoying his right and position as policeman and be prevented from performing and duty or service as such. He objected to being discharged, and has always since held himself in readiness to perform his duties and has demanded that he be reinstated, but the mayor has refused to reinstate him. He prays that the mayor be compelled to do so.

In the brief of counsel for the appellant the statement is made that three ultimate questions are presented: First, whether or not the police commission bill is altogether null because repugnant to the state Constitution; second, if it is not void in its entirety, whether or not it is void in so far as it provides for the holding of positions of policemen for more than two years; and, third, if the bill is invalid in the respect last mentioned, whether or not that part of the bill which forbids the dismissal, without charges or trial, of policemen appointed to hold during good behavior until incapacitated, is effective to prevent, within two years next following such appointment, dismissal by the mayor without charges or trial? The so-called police commission bill provides for a police department in every city and town within Montana, such department to be under the charge and supervision of the mayor, who shall appoint all the members and officers. The members of the force shall be appointed for the probationary term of six months, and the mayor may then appoint them to hold during good behavior or until by age or disease they become permanently incapacitated. In cities of the first class the mayor shall appoint three residents as a board to be known as "the examining and trial board of the police department," to hold office for two years. Each applicant for a position on the force shall first undergo an examination, and, if he receives a certificate from the board, he is eligible to appointment for a probationary period of six months, and may thereafter be appointed to hold during good behavior and until incapacitated. Jurisdiction is conferred upon the board to try and decide all charges brought against any member or officer of the police department, and it is provided that no member or officer of the police force shall be discharged without a hearing or trial before the board, but the mayor and the chief of police, subject to the approval of the mayor, shall have the power to suspend a policeman or any officer under the chief for a period not exceeding 10 days in any one month without a hearing or trial. Vacancies in the force shall be filled from the list of persons eligible to appointment. Members of the police department at the time of their appointment shall not be less than 21 years of age nor more than 50, but this restriction does not apply to any one who was a member of the police department when the bill was passed. Section 14 repeals all acts and parts of acts inconsistent with the provisions of the bill, and concludes: "But nothing herein contained shall abridge any of the powers possessed by the mayor of any city or town under any other provision of law or any ordinance." It was contended in the court below by respondent, and is contended here, that the police commission bill is unconstitutional, in that it is in contravention of the following sections of the Constitution of the state, viz.: Section 6 of article 16, section 31 of article 5, and section 36 of article 5. Section 31 of article 5, above referred to, reads as follows: "Except as otherwise provided in this Constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emolument after his election or appointment; provided, that this shall not be construed to forbid the legislative assembly from fixing the salaries or emoluments of those officers first elected or appointed under this Constitution, where such salaries or emoluments are not fixed by this Constitution." This section has no application to the case at bar. While the relator had acted as a patrolman prior to his appointment, under the new law his term of office, if we may use the expression at this point of the inquiry, was not extended. He was obliged to pass the examination, serve the probationary term, and receive a new appointment before acting as patrolman under the provisions of the police commission bill. The only advantage the former patrolmen had was that the limitation as to age did not apply to them. Section 36 of article 5 of the Constitution reads as follows: "The legislative assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes, or to perform any municipal functions whatever."

In its decision entitled "In re Senate Bill Providing for a Board of Public Works in the City of Denver," 12 Colo 188, 21 P. 481, the Supreme Court of Colorado, after quoting a constitutional provision relating to "special commissions," similar to our section 36 of article 5, said: "It is obvious at a glance that, if this clause controls the legislative discretion in the premises, it is because the board of public works, as constituted by the act under consideration, is a 'special commission,' within the meaning of that phrase as it was understood by the framers of the Constitution. This we do not think, for the following, among other, reasons: The board in question is made a department or branch of the city government. Its power to invest money in public improvements is for the present confined to the expenditure of $3,000,000, but its authority is not limited to this expenditure, and upon making the same its existence does not terminate. It is, like the board of health, fire, and other departments, permanent in its nature, being charged with certain continuous duties and vested with certain perpetual powers. These duties and powers are extensive, and in some respects unusual, but they relate exclusively to municipal affairs, and are essentially functions of the municipal government. The board has no separate existence, office, or authority. It is an administrative agency or instrument, employed exclusively in the control and management of the city's improvements and other interests. In no material respect, save as to the scope and extent of its duties and powers, does it essentially differ from the other departments by means of which the public interests are promoted, and the public health, peace, and welfare protected within the municipality; nor is it an unusual agency, though in some respects its powers are extraordinary." Mr. Justice Elliott in a concurring opinion said: "In my opinion the term 'special commission,' as used in the constitutional provision under consideration, refers to some body or association of individuals separate and distinct from the city government; that is, created for different purposes, or else created for some individual or limited object not connected with the general administration of municipal affairs. It cannot be that the phrase 'special commission,' as here used, refers merely to a separate department of the city government as provided by the charter. To so conclude would be to hold that the board of supervisors, the board of aldermen, the health department, or the police department is a special commission; and hence that the General Assembly could not delegate to either of said boards or departments any power to make improvements, expend money,...