State v. Edwards

• Decision Date: 07 January 1910
• Citation: 106 P. 695,40 Mont. 287
• Parties: STATE ex rel. QUINTIN v. EDWARDS, Mayor.
• Court: Montana Supreme Court

106 P. 695

40 Mont. 287

STATE ex rel. QUINTIN v. EDWARDS, Mayor.

Supreme Court of Montana

January 7, 1910

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

Application for mandamus by the State, on the relation of Moses Quintin against Frank J. Edwards, as mayor of the City of Helena Mont. From a judgment awarding the writ and an order denying a motion for new trial, defendant appeals. Affirmed.

Edward Horsky, for appellant.

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

BRANTLY C.J.

Application for a peremptory writ of mandamus to the defendant as mayor of the city of Helena to compel him to restore the relator to his office as policeman or patrolman upon the police force of the city, from which it is alleged he was unlawfully removed by the defendant. Upon an appeal from a judgment entered upon demurrer to the application and upon motion to quash the alternative writ, it was held that facts sufficient were stated to make a prima facie case requiring the defendant to answer. 38 Mont. 250, 99 P. 940. The defendant then filed his answer denying all of relator's allegations, except that Helena is a city of the first class; that defendant has since May 4, 1908, been its mayor; that relator was a patrolman of the city at the time alleged; and that he is qualified to hold the office. He then alleges affirmatively that on May 4, 1908, Ordinance No. 736 was enacted by the city council and approved by himself, providing, among other things, "that until further order of the council the number of policemen of this city, other than officers named in the last section [section 1], shall be six," and "that under and by virtue of such ordinance the number of policemen or patrolmen of said city was reduced from nine to six, and the office or position of relators was abolished, and in pursuance of said ordinance said relator, together with other policemen or patrolmen, was notified by the mayor of said city and accordingly dismissed." The court overruled the relator's motion to strike out these affirmative allegations as irrelevant, immaterial, and impertinent. Thereafter the defendant was permitted to amend the answer by inserting allegations to the following effect: That the city of Helena is, and since the year 1893 has been, indebted in excess of 3 per cent. of the assessed valuation of the property within its limits; that the funds derived from taxation were not enough to meet the expense of the police department with nine policemen or patrolmen; and that for economic reasons it was necessary to reduce the number from nine to six. A motion to strike out this amendment, as irrelevant and immaterial, was also denied. The reply of relator denies that under Ordinance 736, or otherwise or at all, the number of policemen or patrolmen of the city was reduced from nine to six, or that the office of the relator was thereby abolished, or that in pursuance thereof the relator, either alone or with the other persons, was dismissed. It alleges on information and belief that the ordinance did not, and does not, empower or authorize the mayor or chief of police or both of them together to dismiss the relator, and that it was and is, as to relator, null and void. It is denied that the ordinance was enacted for economic reasons. Allegations to the effect that Ordinance No. 736, with other ordinances referred to, were enacted as the result of a conspiracy entered into by the mayor and the city council for the sole purpose of discharging the relator and others from the police force and substituting other appointees in their places, were, upon motion of defendant, stricken out.

From the record we gather the following facts: The defendant went into office on May 4, 1908. During the term of his predecessor, in pursuance of the statute (chapter 136, Sess. Laws 1907; Rev. Codes, §§ 3304-3317), the police force of the city had been organized under section 50 of the Revised Ordinances of the city, providing that the police force should consist of one chief of police, one police captain, one police sergeant, one day jailer, one night jailer, and such number of policemen or patrolmen as might be necessary to keep the number up to that established from time to time by action of the council, all to hold office during good behavior or until incapacitated by age or disease. By section 51 it was declared that the number of policemen, other than officers mentioned in section 50, should be nine. The order of the mayor appointing the relator designated him as "patrolman." In an ordinance passed and approved on April 20, 1908, fixing the salaries of all officers and making appropriations for the year beginning with the term of the defendant, provision was made for nine policemen or patrolmen. The salary of each was fixed at $90 per month, making a total appropriation for this purpose of $8,720. A separate appropriation was made for the salaries of the police captain and chief of police. A special appropriation of $1,000 was made for special police officers. On May 4, 1908, Ordinance No. 736, referred to in defendant's answer, was enacted, amending sections 50 and 51 of the Revised Ordinances, supra, by omitting therefrom provision for a police captain, and providing that until further order of the council the number of policemen should be six. On June 3d, the ordinance having become operative under section 3268 of the Revised Codes, the relator with two other policemen or patrolmen and the police captain were at once, by direction of the mayor, discharged from the force by the chief of police. On June 9, 1908, the council enacted Ordinance No. 739, which repealed Ordinance No. 736. Immediately after the passage of Ordinance No. 739, and at the same session, the council enacted Ordinance No. 740, amending sections 50, 51, Revised Ordinances, supra, by fixing the number of policemen at seven. In the ordinance making the annual appropriations for the year 1909, provision was made for six policemen or patrolmen, the salary of each being fixed at $90 per month, as before. Provision was also made for special police officers to the increased amount of $3,240. The apparent reduction in the expenses of the city government effected by the course thus pursued, including the salary of the police captain, not provided for because of the discharge of this officer, was $1,920. But notwithstanding the number of the force was thus reduced from nine to seven, from and after June 3, 1908, and up to the time of the trial, there had been in the employment of the city at no time fewer than ten policemen in active service. Six of them had been regularly appointed under the previous administration. The others were put upon the force by the chief of police with consent of the mayor, and apparently with the acquiescence of the council, but without formal appointment by any one. Some of them were selected from the eligible list and others not. They were paid by the city, from month to month, just as were the six having permanent appointments. It thus appears that the actual net reduction of the expense to the city for this service was merely nominal, instead of being $1,920, the difference in the amounts appropriated for the years 1908 and 1909, respectively.

At the time these acts were done, the city was indebted to an amount in excess of the constitutional limit of 3 per cent.; but it does not appear that the expenditures for compensation of policemen, including that of special officers, were ever in excess of the amount of the police fund derived from the levy of a special tax and from other sources.

From these facts, which are not disputed, the trial court concluded that the relator was entitled to the relief demanded, and directed judgment to be entered awarding the writ as prayed. The defendant has appealed from the judgment and an order denying his motion for a new trial. In discussing the assignments of error, we more conveniently take them up in the order in which they are noticed in the brief of counsel for the relator.

1. We notice, first, the contention that the court erred in failing to make special findings, as requested by the defendant. There is no merit in the contention. In order to render it the imperative duty of the trial court to make special findings, it is incumbent upon a party, at the conclusion of the evidence and argument in the cause, to make request in writing for findings, and to have the request entered in the minutes of the court. If this is not done, a judgment may not be reversed for want of findings. Rev. Codes, § 6766. Counsel for defendant did not make any request upon the submission of this cause. The evidence and argument were concluded on April 29, 1909. The cause was then taken under advisement. At the request of the trial judge, counsel for both parties thereafter filed briefs, defendant's counsel on April 29th, and relator's counsel on May 1st. On May 11th defendant's counsel notified the judge by telephone that he had intended to file a reply brief, but had not been able to do so; that he was preparing a request for findings which he desired to have made; and that he would still file a brief if he could within the next few days. None was filed. Thereafter, on the same day, counsel wrote to the judge requesting him to make findings, and asking that his request be entered in the minutes. The request was thereafter entered. Under the provisions of the Code, supra, the request should have been made at the time the cause was taken under advisement. But, even if it be conceded that the cause was finally submitted upon notice to the judge that no other brief would be filed, the contention must nevertheless be overruled; for the reason that the facts were not controverted. Findings would therefore have been useless. When...