Moores v. State ex rel. Shoop

Sullivan, J. The relators were police officers of the city of Omaha, and being dismissed from service applied to the district court of Douglas county for a writ of mandamus to compel the respondents, as members of the board of fire and police commissioners, to reinstate them. An alternative writ was issued, an answer was filed, and a trial had, which resulted in the allowance of a peremptory writ as prayed. The respondents complain of the judgment and ask that it be reversed. The relators were dismissed from the police force under the authority of the following resolution adopted by the board: “Whereas, the fund provided by the mayor and the city council to maintain the police department is wholly insufficient to pay the salaries of the present police force, and the continuance of the force now in the employ of the city will create an overlap in an amount exceeding the sum of $3,400, which is wholly unauthorized under the laws controlling the action of the board, it therefore becomes the duty of this board to dismiss such a number of officers and patrolmen as will bring the expenditures within the limit of the funds placed at its disposal. Therefore, this board considers, finds, and declares that the proper management of said police force requires that the following officers and patrolmen be removed from their several offices, to-wit.: Sergeants, F. D. Mitchell and R. W. Chamberlain; detectives, E. H. Hemming and W. W. Cox; patrolmen, W. H. Shoop, R. A. Wfilbur, James Kirk, and S. G. Hoff. It is therefore ordered that the foregoing officers and patrolmen be removed from their respective offices, to take effect upon and after September 30.” The contention of the relators is that the adoption of the foregoing resolution and the action taken in pursuance thereof were in violation of the provisions of section 169 of the city charter, which is in part as follows: “All powers and duties connected with and incident to the appointment, removal, government, and discipline of the [488] officers and members of the fire and police departments of the city, under such rules and regulations as may be adopted by the board of fire and police commissioners, shall be vested in and exercised by said board. * * * The chief of police and all other police officers, policemen and police matron, shall be subject to removal by the board of fire and police commissioners, under such rules and regulations as may be adopted by said board, whenever said board shall consider and declare such removal necessary for the proper management or discipline, or for the more effective working or service of the police department. No member or officer of the police or fire department shall be discharged for political reasons, nor shall a person be employed or taken into either of said departments for political reasons. Before a member of the police or fire department can be discharged, charges must be filed against him before the board of fire and police commissioners and a hearing-had thereon, and an opportunity given such' member to defend against such charges, but this provision shall not be construed to prevent peremptory suspension of such member by his superiors in case of misconduct or neglect of duty or disobedience of orders.” This statute plainly vests the power to appoint, remove, and exercise a general supervision over police officers in the board of fire and police commissioners of the city. It provides that the members of the police department shall be subject to, removal whenever, in the judgment of the board, such removal shall be.necessary for the proper management, discipline, or more effective service of the department. It then declares that no officer shall be discharged for political reasons, nor without a formal accusation filed with the board, a hearing given, and an opportunity afforded such officer to make a defense. The respondents having been .dismissed from the service without a hearing- or an opportunity to be heard, the question, and the only one presented by the record for decision, is whether the action of the board was forbid [489] den by the above quoted provision of the charter. It is not claimed that the dismissal was for any reason other than the one stated in the resolution, and the respondents in their answer alleged, and at the trial offered to prove, that the motive there assigned was the true and only motive for the action taken. But relators insisted, and the trial court ruled, that they were entitled to a hearing regardless of the grounds upon which the board proceeded. We cannot accept this view of the law. These officers were not discharged within the meaning of the term as used in the statute. The places which they filled were abrogated. They were not dismissed to make room for others or because they were deemed unfit to be retained in the service. They lost their places because their places ceased to exist. The matters recited in the resolution as the basis for the action of the board can by no just interpretation be held to constitute a charge against these men. It imputes to them no official misconduct or dereliction of any kind; no unfitness or want of capacity. It touches in no way the private or official character of any of them. That the city authorities failed to make an appropriation adequate to the requirements of the police department is not a charge against officers whose services are dispensed with for want of sufficient funds with which to pay their salaries. The board may, undoubtedly, on economic grounds dismiss police officers without a hearing. The right given to an officer by the statute to a hearing and an opportunity to defend is manifestly a right to vindicate himself from an unjust accusation, and not a right to show that the revenues are sufficient to pay his salary or that the public weal requires that his place be not abolished. (Phillips v. Mayor, 88 N. Y. 245; People v. Mayor of Brooklyn, 149 N. Y. 215, 43 N. E. Rep. 554.) Speaking of the general policy of a statute like the one here considered and the cases to which it was applicable, the New York court of appeals, in the case of Lethbridge v. Mayor, 133 N. Y. 232, 30 N. E. Rep. 975, uses the following language: “The limitation contained in this statute [490] is in the interest of the public, which is best promoted by keeping in the sendee honest clerks who have attained experience in their employment; and besides, it is a matter of justice to the employé himself, whose summary displacement, and the appointment of another in his place, may give rise to an implication of infidelity or unskillfulness on his part, which an examination and explanation might have wholly dispelled. But no such reasons exist when a clerk is discharged from the public service because the moneys appropriated by the body charged with that subject are insufficient to keep up the clerical force to the standard which had obtained when larger appropriations were made, or when for such cause his services are no longer needed. The notice is indispensable, and an opportunity should be afforded to the clerk to make an explanation when such explanation might prevent the proposed removal. It is quite evident that the. section applies only to cases where the removal is proposed to be made without just cause personal to the party, or when it is sought arbitrarily, and without adequate reason, to substitute another person in the place of the one proposed to be removed.” Counsel for relators contend that this court cannot review the judgment because the clerk of the district court failed to certify that the record contains a transcript of all the proceedings. A formidable array of cases from other jurisdictions has been marshaled in support of this contention; but the rule in this state has been settled the other way. This court has repeatedly held that the record brought here should contain only what is essential to a correct understanding of the case. (Morgan v. Larsh, 1 Neb. 361; Smith v. Fife, 2 Neb. 10; Galley v. Galley, 13 Neb. 200; Hilton v. Bachman, 24 Neb. 490.) Our conclusion is that the facts stated in the alternative writ do not show that the relators are entitled to any relief. The judgment of the district court is therefore reversed and the proceeding dismissed. Reversed and dismissed.