State ex rel. Lease v. Wilkinson , 55 Mont. 340 ( 1918 )

MR. JUSTICE HOLL.OWAY

delivered the opinion of the court.

In October, 1910, relator was duly appointed policeman of the city of Missoula, — a city of the first class, — qualified as such and performed the duties of his office until March, 1918, when he was discharged by the city commissioners, without trial and without notice that any charges had been preferred against him. He instituted this proceeding in mandamus to compel his reinstatement, and in his affidavit set forth the facts in detail. An alternative writ was issued and upon return respondents appeared by demurrer and motion to quash. The' demurrer and motion were sustained and a judgment entered dismissing the proceeding, from which judgment relator appealed.

The minutes of the court recite: “In this matter it appearing to the court that the respondent is willing to accord relator a hearing by trial, it is therefore ordered that the motion to quash alternative writ of mandate heretofore argued, submitted and by the court taken under advisement is this day sustained. ’ ’ The record consists of the affidavit, the alternative writ, the demurrer, motion to quash, minute entry above, judgment and notice of appeal. The judge of the trial court certifies that this record, excepting the notice of appeal, “is a full, true and complete transcript of the record actually used by me as the basis of the order from which the appeal herein is now taken, and that the' same contains all of the record and evidence heard and used by me in said action, and the foregoing is now by me hereby settled, allowed and approved as a true and correct transcript of the record in said action.”

It does not appear by what means the trial court was or could have been apprised of the fact that the respondents, were willing to accord relator a hearing after this proceeding was instituted, but it is entirely immaterial. The wrong done to relator had occurred two months before this cause was heard in the lower court and was a continuing wrong.

The demurrer and motion to quash admit the allegations of [1] the affidavit to be true (State ex rel. Fadnsss v. Eie, 53 Mont. 138, 162 Pac. 164); so we have presented the case of a [2] duly appointed, qualified and acting policeman of a city of the first class, dismissed from office without any charges having been made against him and without notice of trial, in violation of the Metropolitan Police Law in force in, and obligatory upon, a city of this class. No defense of this action of the city commissioners is suggested. Indeed, they have not appeared in this court. The affidavit states facts sufficient, if proved, to entitle relator to the relief demanded.

The decisions in State ex rel. McDonald v. Getchell, 51 Mont. 323, 152 Pac. 480, and State ex rel. Duyer v. Duncan, 49 Mont. 54, 140 Pac. 95, are controlling here; and upon the authority of those cases the judgment is reversed and the cause is remanded, with directions to overrule the demurrer and motion to quash.

Reversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Pigott concur.