Venable v. Board of Police Com'rs of City of Portland

• Decision Date: 06 January 1902
• Citation: 67 P. 203,40 Or. 458
• Parties: VENABLE v. BOARD OF POLICE COM'RS OF CITY OF PORTLAND. [1]
• Court: Oregon Supreme Court

67 P. 203

40 Or. 458

VENABLE v. BOARD OF POLICE COM'RS OF CITY OF PORTLAND. ^[1]

Supreme Court of Oregon

January 6, 1902

Appeal from circuit court, Multnomah county; Alfred F. Sears, M.C George, and John B. Cleland, Judges.

Writ of review by Charles Venable against the board of police commissioners of the city of Portland to determine the validity of his removal from the police force. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is a special proceeding to review the action of the board of police commissioners, whereby the plaintiff was relieved from the office of regular policeman of the city of Portland. The plaintiff was appointed November 3, 1899, and continued to discharge the duties of his appointment until June 23, 1900 when he was dismissed by an order of the board, made and entered at a regular meeting thereof, without notice or charges; and it is alleged that by reason thereof the board has exceeded its jurisdiction, and exercised its judicial functions erroneously. The secretary of the board returned the writ with a transcript of the proceedings had relative to plaintiff's appointment and dismissal, which is, in brief, as follows:

"November 1, 1898. The board met. *** On motion of Mr. Cohen, J.L Wells was appointed humane officer."

"November 3, 1899. Pursuant to adjournment, the board met. *** Mr Bates moved that the board proceed to organize the department in accordance with the charter by the appointment of the following named men to the police force which was carried." Those appointed were O.P. Church, Fred Hallett, W.O. Stitt, H.A. Parker, P. Murray, G.L. Du Bois, C. Venable, M. Waller, J.M. Hackleroad, E.W. Cole, and 47 others.

"June 23, 1900. Adjourned meeting of the board. *** The following members of the police department were dismissed from service, there being no funds for their payment; and the commissioners desire to state that, while the officers performed their duties, the action of Mr. Greenleaf, the assessor, in reducing the assessment, made it imperative. *** To take effect June 30, 1900." Those dismissed were J.C. Wells. Charles Venable, the plaintiff, and other persons above named, except O.P. Church.

"July 30, 1900. The board met. *** On motion of Commissioner Bates, O.P. Church was appointed special policeman, vice Jack Roberts."

"August 2, 1900. A special meeting of the board. *** On motion of Commissioner McLauchlan, H.A. Parker and E.W. Cole were appointed policemen. On motion of Commissioner McLauchlan, John F. Kerrigan and Frank J. Snow were appointed detectives."

"September 3, 1900. The chief of police reported having appointed C.L. Du Bois and J.M. Harkleroad regular officers. On motion, the appointments were ratified."

"November 5, 1900. The board had its regular monthly meeting. *** The chief of police reported having reinstated O.P. Church as a regular policeman on October 25, 1900, and on motion his action was ratified."

"November 5th. *** On motion of Commissioner Rankin, Joe Reising was appointed a regular policeman, to be detailed as humane officer; the appointment to date from November 15, 1900. He served fifty-five days and resigned. Has received no money. Mr. Reising was selected by the Humane Society with the understanding that if the council did not pay his salary, which the commissioners said would be very uncertain, the society itself would supply it."

The trial court reversed the order dismissing the plaintiff from service, and directed his reinstatement, from which judgment the board appeals.

J.M. Long, for appellant.

D.J. Malarkey and John F. Logan, for respondent.

WOLVERTON, J. (after stating the facts).

The plaintiff's contention is that, by the act of the board appointing him and others regular policemen, they were constituted officers, and that their tenure of office was during good behavior; that they could not be removed for any cause or purpose whatsoever, except for inefficiency misconduct, insubordination, or violation of law; and that the dismissals were made to subserve political purposes, contrary to the direct inhibition of the charter. Upon the other hand, it is maintained that the board was vested with ample power to so manage and regulate the department as to adapt it to the exigencies of the service, and that it was authorized to reduce the police force upon economical grounds, being charged with the duty of keeping the expenses of the department within the appropriations or funds available therefor, and that the dismissal of plaintiff, with others, was in pursuance of that authority, and not for political reasons. The proceeding being by writ of review, the question must be resolved by the record, as one of law, and no extraneous facts or evidence aliunde can be taken into account. The police commissioners are by the charter given plenary power pertaining to the organization, management, and control of the police department. In this respect they stand in the place and stead of the common council, as they are clothed with all the executive functions of the city pertaining thereto. They are authorized to adopt rules and regulations for receiving and hearing complaints against members of the police force; for their removal, suspension, or forfeiture of wages on account of misconduct or negligence in the discharge of their duties. Sections 68-70, Portland City Charter 1898. Beyond this, their functions require that, from an economical standpoint, they shall so manage and conduct the affairs pertaining to the department as to keep the expenses within the revenues appropriated and available for that purpose. Section 32, subd. 1, and sections 51, 71, 217, Id.; Gadsby v. City of Portland, 38 Or. 135, 63 P. 14. The revenues are fixed by the charter, and, after an assessment is made, the amount available may be readily ascertained. In view of these powers and functions imposed upon the board, it was declared that all appointments made thereby should continue during good behavior, and that no officer or member of the department should be removed or reduced in rank or pay upon political grounds, or for any reason except inefficiency, misconduct, insubordination, or violation of law, after a fair trial upon complaint regularly preferred, and reasonable notice. Sections 99-101. These latter regulations are restrictions upon the powers previously accorded, and are to be construed as limiting the power of removal for cause to those several reasons enumerated, but the power to so administer the affairs of the department as to keep the expenditures within the estimated revenues is not thereby restrained or circumscribed. Having the power to organize the police force in the first instance the commissioners have the power to increase or reduce it as the exigencies and proper management may require; and therefore, if the anticipated revenues are insufficient to meet the requirements of an efficient service, they may reduce the force so that the expenditures will not exceed the appropriations, if practicable. This is a view taken of a like situation in New York, and seems reasonable and sound. It was there enacted that "no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation, and in every case of removal, the true grounds thereof shall be forthwith entered upon the records of the department or board," the object of which legislation was declared to be to prevent removals, except for cause, and then only after an opportunity to be heard. It was adjudged that such enactment had no application to the case where a clerkship was abrogated, because there was no further need for the services, or for the lack of available funds with which to meet expenses. In another case it was said that the provision has no application to a case where the incumbent was dismissed for want of funds, or in order to reduce expenses. Lethbridge v. City of New York, 133 N.Y. 232, 237, 30 N.E. 975; Langdon v. Mayor, etc., 92 N.Y. 427; People v. Board of Fire Com'rs, 72 N.Y. 445; Moores v. State, 54 Neb. 486, 74 N.W. 823. It is urged that the board is not accorded the power of removal by way of distinguishing some of the cases where it appears that such a power was expressly given by statute. But the authority is implied from the power of appointment, where the...