Sullivan v. City of Butte

• Decision Date: 21 December 1922
• Docket Number: 4938.
• Parties: SULLIVAN v. CITY OF BUTTE.
• Court: Montana Supreme Court

211 P. 301

65 Mont. 495

SULLIVAN v. CITY OF BUTTE.

No. 4938.

Supreme Court of Montana

December 21, 1922

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Action by Michael F. Sullivan against the City of Butte, a municipal corporation. From judgment for plaintiff and from an order denying a motion for new trial, the defendant appeals. Affirmed.

J. O Davies and Miles J. Cavanaugh, both of Butte, for appellant.

N. A Rotering and J. V. Dwyer, both of Butte, for respondent.

HOLLOWAY J.

The facts of this case are substantially the same as those involved in Sweeney v. City of Butte, 64 Mont. 230, 208 P. 943. It is urged that in disposing of the Sweeney Case, this court did not give sufficient consideration to the provisions of the act of August 11, 1919 (chapter 11, Laws of Extraordinary Session 1919). That act is very brief. It consists of two sections, the first one of which reads as follows:

"Actions to recover salaries by members of the police department of cities must be commenced within six (6) months after the cause of action shall have accrued."

This section is nothing more nor less than a statute of limitations, and its terms are too clear to admit of construction. It construes itself.

Section 2 provides:

"No action can be maintained by members of the police department of cities for unpaid salary, except for service actually rendered and if suspended or placed on the eligible list, then only for the days the member of the police department reports for duty."

The meaning of this section is difficult to determine. The two clauses in the sentence comprising the section are apparently contradictory in terms. It is a cardinal rule of statutory construction that the intention of the Legislature is to be ascertained, if possible, and, when ascertained, is to be given effect. If the meaning of the statute is obscure, the courts may with propriety recur to the history of the times when it was enacted (Lerch v. Missoula B. & T. Co., 45 Mont. 314, 123 P. 25, Ann. Cas. 1914A, 346), and if enacted at an extraordinary session of the Legislative Assembly, as in this instance, the language is to be understood in the light of the special message of the Governor submitting the subject-matter for legislative consideration (State ex rel. Boston & Mont. Con. C. & S. Min. Co. v. Harney, 30 Mont. 193, 76 P. 10).

The Governor was prompted to submit this matter to the Legislature by a communication from the mayor of the city of Butte. The records of this court in the numerous cases decided prior to August 11, 1919, involving the right of ousted policemen to compensation during the period of enforced idleness, disclose that cities of this state had repeatedly attempted to discharge policemen or to suspend or relegate them to the eligible list, in utter disregard of the provisions of the Metropolitan Police Law, and that in each instance the policeman had recovered his salary from the date of his unlawful discharge to the date of his reinstatement. The fact that in these cases the city of Butte had paid out more than $100,000 for services never rendered, furnished the subject for the mayor's communication to the Governor, and when we consider that communication and the Governor's message, we are led reluctantly to the conclusion that by section 2 above, the Legislature intended to declare the policy of this state to be (1) that a policeman, though unlawfully discharged from his office, may not recover salary except for services actually performed, and (2) that a policeman, though unlawfully suspended or relegated to the eligible list, may recover salary only for the days upon which he reports for duty. We are reasonably certain, however, that by section 2 the Legislature did not attempt to intercept and cut off rights existing at the time the statute was enacted.

While it is true that it was necessary for plaintiff to secure his reinstatement before he could maintain an action for salary it is equally true that he was in contemplation of law a member of the police force while wrongfully prevented from performing the duties of his...