Sweeney v. City of Butte

• Decision Date: 10 July 1922
• Docket Number: 4801.
• Citation: 208 P. 943,64 Mont. 230
• Parties: SWEENEY v. CITY OF BUTTE.
• Court: Montana Supreme Court

208 P. 943

64 Mont. 230

SWEENEY v. CITY OF BUTTE.

No. 4801.

Supreme Court of Montana

July 10, 1922

Commissioners' Opinion.

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

Action by Thomas D. Sweeney against the City of Butte. From a judgment for plaintiff, and an order refusing a new trial defendant appeals. Affirmed.

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

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

COMER C.

This is an action brought by Thomas D. Sweeney, the plaintiff and respondent, against the city of Butte, defendant and appellant, to recover his salary as a member of the police department of defendant from May 1, 1918, to July 25, 1920. Plaintiff recovered judgment in the district court and the defendant appeals.

Summarizing the facts, as alleged in plaintiff's complaint, they are as follows:

Defendant is a municipal corporation, a city of the first class, possessing a population exceeding 10,000. In June, 1908, it adopted an ordinance creating a police department. On May 1, 1918, plaintiff was, and now is, a qualified member thereof in the capacity of patrolman, having been duly and regularly appointed thereto. On May 1, 1918, the mayor of the city of Butte ousted and wrongfully removed him from such position as a member of said police department, causing his name to be stricken from the pay roll without any charges of any kind being preferred against him before the examining and trial board. On May 28, 1920, a proceeding in mandamus was commenced in the district court by plaintiff to compel defendant city to restore him to the office and the emoluments incident thereto. On July 24, 1920, after a trial before the court, a peremptory writ of mandate was issued, adjudging plaintiff had been unlawfully ousted from his office as a member of the police department of the city of Butte. Paragraph 5 of the complaint is as follows:

"That said plaintiff was at all of the dates between said 1st day of May, 1918, and the 25th day of July, 1920, and at all times, ready, willing, and able to perform the duties of his said office, and at all times held himself in readiness to perform said duties (and reported to the mayor of the city of Butte and to the chief of police of the city of Butte that he was at all times ready and willing to perform the duties of patrolman of the city of Butte), and prior to the date of the commencement of said mandate proceedings so notified the mayor of said city and the chief of police thereof."

Plaintiff filed his claim for the salary of the office with the city clerk of defendant, but it was disallowed.

The answer of defendant admits the adoption of the ordinance creating the police department, and that it rejected and disallowed plaintiff's claim, denies all other allegations of the complaint, and alleges that said cause of action is barred by the provisions of chapter 11 of the Extraordinary Session of the Sixteenth Legislative Assembly. From the judgment in favor of plaintiff, and the order refusing a new trial, defendant appeals.

Several specifications of error are alleged; but, as we view the cause, only two propositions are involved: First, may the defendant at this time attack the judgment rendered in the district court, determining plaintiff was entitled to the office and the emoluments thereof? Second, what is the effect upon this action of chapter 11 of the Extraordinary Session Laws of the Sixteenth Legislative Assembly, approved August 11, 1919?

Can the defendant attack the judgment in the mandamus action rendered July 24, 1920, adjudging plaintiff entitled to the office and emoluments? It is conceded that no appeal was taken from the judgment, and it is in full force and effect. Defendant vigorously assails the judgment, upon the ground that the facts pleaded did not warrant the court in adjudging plaintiff entitled to the office and emoluments. This is a collateral attack upon the judgment. Haupt v. Simington, 27 Mont. 480, 71 P. 672, 94 Am. St. Rep. 839. No question is raised that the court did not have jurisdiction either of the parties or the subject-matter of the action, but the assertion is that the conclusion of the court, as embodied in the final judgment, is erroneous. The same question was raised in Peterson v. Butte, 52 Mont. 13, 155 P. 265, and in disposing of it, Mr. Chief Justice Brantly said:

"The conclusion cannot be avoided that the court was of the opinion, and intended to declare, and did declare, that plaintiff's cause of action was barred by the provision of the statute made the basis of the decision. In other words, the exact question determined appears upon the face of the judgment. Therefore, proprio vigore, it became conclusive upon the question decided. Rev. Codes, §§ 7914, 7917. It is not of avail that the determination was for any reason erroneous. If such was the case, the only escape for plaintiff from being concluded by it was to have it set aside on appeal, or by other appropriate method. Peterson v. City of Butte, supra; Dunseth v. Butte El. Ry. Co., 41 Mont. 14, 21 Ann. Cas. 1258, 108 P. 567. This was not done. It was allowed to stand, and has long since become final."

Not having appealed from the judgment awarding the peremptory writ, defendant is bound by it. Section 10558, R. C. M. 1921. The peremptory writ issued in the mandamus action directed the defendant to admit plaintiff--

"to the use, enjoyment, and possession in active service, and to the pay, and position, and office, of patrolman and member of the police department of the city of Butte."

This was an adjudication that plaintiff was unlawfully deprived of his office as patrolman and that he was entitled to a reinstatement and to the emoluments.

"The salary is an incident to the office, and, if entitled to the office, his right to the salary follows." Wynne v. City of Butte, 45 Mont. 417, 123 P. 531; State v. Porter, 55 Mont. 471, 178 P. 832.

Therefore plaintiff is entitled to the amount claimed as salary, unless his claim is barred by the provisions of said chapter 11, enacted at the Extraordinary Session of the state Legislature in 1919. This chapter is as follows:

"Section 1. 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.

Sec. 2. 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.

Sec. 3. All acts and parts of acts in conflict herewith are hereby repealed.

Sec. 4. This act shall be in full force and effect from and after its passage and approval."

It is contended by plaintiff that the act is within the inhibition contained in section 11 of article 7 of the Constitution of Montana, in that the subject of the act is not within the purview of the proclamation or recommendation of the Governor. Section 11 of article 7 is as follows:

"He may on extraordinary occasions convene the Legislative Assembly by proclamation, stating the purposes for which it is convened, but when so convened, it shall have no power to legislate on any subjects other than those specified in the proclamation, or which may be recommended by the Governor, but may provide for the expenses of the session and other matters incidental thereto. He may also by proclamation convene the Senate in extraordinary session for the transaction of executive business."

The proclamation of the Governor, calling the special session, has no reference to the legislation embodied in said chapter 11, but in his message to the Legislature at this session, on the day it convened, with reference to the "department of police," the Governor said:

"The mayor of the city of Butte has directed my attention to the fact that the law having to do with 'department of police' has been so construed as to work an injustice upon cities. He states that the city of Butte has paid out more than one hundred thousand dollars in salaries to discharged and suspended policemen, for which no service was rendered. He considers the matter of emergent importance and asks that I submit the same to you for consideration. There ought to be amendment to the general law so that such conditions may be obviated in the future."

Does chapter 11, subsequently passed at the special session, come within the scope of the Governor's message? Section 11 of article 7 of the Constitution was construed by this court in State ex rel. Boston, etc., Co. v. Harney, 30 Mont. 193, 76 P. 10, and State ex rel. A. C. M. Co. v. Clancy, 30 Mont. 529, 77 P. 312. In the latter case the court said:

"When the exigencies of the times require it, the Legislature may be called in extraordinary session by the Governor to consider particular subjects of legislation. Those subjects must be enumerated in the proclamation or in the Governor's message to the assembly, and the power of the Legislature is limited to enacting laws affecting those subjects only. Section 11, art. 7, above. In other words, the Governor may submit the subjects with reference to which legislation is desired, but the law-making body then has absolute power to construct such laws respecting those subjects as it shall see fit (unless restrained by constitutional inhibition), or to disregard the subjects altogether and not enact any measures respecting them."

The Legislature, when convened in extraordinary session, has "no power to legislate on any subject other than those specified in the proclamation, or which may be recommended by the Governor." If the legislation is upon the subject embodied...