State ex rel. Quintin v. Edwards

Mr. Justice Hoddoway:

I dissent. In my judgment the Helena city council had the power to abolish the office held by *310relator; that it exercised the power in the enactment of Ordinance No. 736; that relator was discharged from the police force; and that he. is not entitled to relief.

That under these metropolitan police laws the office of policeman is created by the city council, and not by the legislature, is conceded by everyone. That in the absence of statutory prohibition the city council may abolish any office which it creates is held by the authorities uniformly, and is admitted by relator, Quintín. In the brief of his counsel, it is said: “Whence the conclusion is manifest that in the absence of section 3220 and sections 2 and 3 of the police bill (Revised Codes, secs. 3305, 3306), the city council would be clothed with authority to abolish any office created by it, including the place held by a policeman. No statute is necessary to confer power upon a city to abolish an office created by it.”

Since in the opinion of the majority of the court there is not any consideration given to section 3220 above, it is fairly inferable that it was not deemed applicable to this case. The first portion of that section merely declares the law to be what it had been for years before the adoption of the statute. It is suggested, however, that to the language therein employed should be applied the maxim, “Expressio unius exclusio alterius,” but this contention was determined adversely to relator, in City of Helena v. Kent, 32 Mont. 279, 80 Pac. 258, and dissenting opinion of Justice Milburn. The last portion of section 3220 contains a prohibition upon the city council. The council shall not abolish any office therein referred to which has been created by the legislature. Beyond this, that section does not go; and in my opinion the section does not have any application in this case, and the city council still has the power to abolish the office of policeman, unless prohibited by the police bill itself. If it is prohibited by that Act from abolishing such office, then it is wholly immaterial for what reason it attempts to do so, since a good reason would not make a void act valid.

Section 2 of the police bill (Revised Codes, sec. 3305), does" not contain any restriction upon the power of the city council. It relates to the power and authority of the mayor. Section 3 *311'(section 3306), provides that, after applicants have passed the probationary period and have been appointed policemen, “they ■shall hold, during good behavior, or until by age or disease "they become permanently incapacitated to discharge their duties.” But this language is fully interpreted and explained in ■section 5 of the Act (Revised Codes, sec. 3308), as follows: “No member or officer of the police force in cities of the first class shall be discharged without a hearing or trial before said [examining and trial] board.” In other words, these seetionsi merely mean that, so long as the office is in existence, the incumbent shall hold it unless incapacitated by age or disease, or unless he is removed for cause after trial as provided in section 5 of the Act. This is the meaning given like Acts in every state where they have ever been construed. But these sections do not expressly or impliedly prohibit the council from abolishing the office. As said in the opinion of the majority above: “It cannot be supposed that the legislature intended that after the police force had once been created and its members finally appointed, the number so appointed must continue in office, whether the financial condition of the city or the public needs required their retention or not.” That, notwithstanding the ■enactment of this police law, the city council retains its implied power to abolish the office of policeman, is affirmed by every court whose decision has been pressed upon our attention. The list of authorities given in paragraph 3 of the majority opinion, above, evidences to some extent the uniformity with which this doctrine has been asserted. And since many, if not all, of these cases were decided some considerable time before the enactment of our statute it would seem reasonable that our legislature must have adopted this measure with full knowledge of the construction given similar Acts and with the intention that our law should receive the same construction given like measures by the highest courts of the states where the question had arisen. That in adopting Ordinance 736 the Helena city council abolished the offices of three policemen is amply sustained by reason and the cases referred to above.

*312The city council having abolished three offices, It was the- duty of the mayor, who is charged with the supervision of' the police force, to designate the particular members who should be dropped from the force, and this was done. In Heath v. Salt Lake City, 16 Utah, 374, 52 Pac. 602, the court was there considering am Act in all essentials the same as our own, and upon this particular feature said: “We think the designation of the- members of the department who were t'o be dismissed in pursuance of the ordinance was properly a matter for those who had Supervision and control of the department; they being doubtless more familiar with the requirements of the public service-. The members designated, having thus been discharged' because of the abrogation of their offices, had thereafter no valid claim against the municipality for salaries,” etc.

In my opinion there is but one restriction upon the power of the city council to abolish these offices, and that is contained in section 1 of this Act: ‘ ‘ There shall be in every city and town of this state a police department,” etc. The city council could not, therefore, abolish the office of every policeman, but within, the restriction contained above, the city council has the authority to say how many policemen shall be employed at any given time. A city of 25,000 population to-day, which depends upon a single industry, might have its population reduced to 500 by the removal of that particular industry, and yet, if in- its prosperous days forty policemen were necessary and were appointed under this police bill, the city in its adversity would be- compelled to maintain the same force, unless the city council could reduce it. In my judgment, if the power does not exist to reduce the force by abolishing some of the offices, it does, not exist .at all.

The statute, as I read it, does not expressly or- by implication authorize the city council to remove- a policeman from active-service and, by depriving him of his- duties and compensation, effect a reduction of the city’s expenses. The status of a policeman thus reduced would defy definition. Certainly, the definition of the word “policeman,” as given in the opinion of the: *313majority above, would not apply to bim, and yet he is either a policeman or he is not a member of the police force at' all.

Rehearing denied February 4, 1910.

It does not aid relator in the least to urge that the city officials are violating the law in employing so-called extra policemen. If a wrong is being done by the employment of such men, the law affords an adequate remedy, but it is wholly beside the question of relator’s right.