DocketNumber: No. 21352
Citation Numbers: 105 Neb. 447
Judges: Day, Flansburg, Rose
Filed Date: 12/23/1920
Status: Precedential
Modified Date: 9/9/2022
The former opinion in this case is reported in 104 Neb. 260.
The matter comes up on rehearing.
Plaintiff makes a claim for compensation under the workmen’s compensation law, for the death uf her husband, who was killed while performing his duties as a policeman for the city of Omaha. She recovered judgment, and defendant, city of Omaha, appeals.
We adhere to our former opinion that a member of the police department of the city of Omaha is an officer and in the service of a governmental agency of the state, and take up for consideration now the question, only, of whether or not such police officer holds for a “regular term of office.”
The charter of the city of Omaha (Rev. St. 1913, sec. 5300) provides that no member of the police department shall be discharged for political reasons, nor except in case a complaint is filed against him, a hearing had, and opportunity given him to defend against the charges made. It is further provided (Rev. St. 1913, sec. 5301) that the city authorities “shall have power to discontinue any employment or abolish any office at any time when, in the judgment of the council, such employment or.office is no longer necessary.”
A-police officer, then, holds indefinitely during good behavior and cannot be discharged for cause without a hearing and opportunity to defend. State v. City of Lincoln, 101 Neb. 57. But when, for reasons of economy or lack of public necessity for his services, the city authorities see fit to terminate his employment, he has no right to a statutory hearing upon the question of whether or not the public Avelfare requires a continuance of a full police force, or of Avhether or not the revenues available are adequate for the payment of his salary. Moores v. State, 54 Neb. 486; note 4, A. L. R. 205 (State v. City of Seattle, 74 Wash. 199).
The fact that the tenure of office may be interrupted by the discontinuance of the service or abolition of the office
Whether or not a member of the police department holds for a “regular term of office” depends upon whether or not the period of time for which he is appointed shall be called a “regular term.” A police officer of the city of Omaha is appointed to serve during good behavior. That means an indefinite period. No two officers will hold for the same duration of time. The law has fixed no limitation on the tenure of office. One may hold for life or as long as he desires, unless, through his own misconduct, he is discharged for cause. With such irregularity of duration, the period of tenure can hardly be denominated a “regular term” of office, within the meaning of the statute.
The word “term” implies a period of time with some definite termination. A “regular term” must contemplate that those terminations must come at regular intervals of time. The wording of the statute bears out this construction. It speaks of appointments “for a regular term of office, or to complete the unexpired portion of any regular term” The regular term contemplated, therefore, was one of definite duration and one which might continue, though the incumbent does not serve out the entire period. In order that there ever exist an “unexpired portion of any regular-term,” that term must have some regularly fixed terminus in point of time.
The question of the meaning of the phrase “term of office” has frequently arisen where an appointment has been made and the officer to hold at the pleasure of the appointing power. In those cases, since no definitely fixed date for termination, of the office can be ascertained in advance of its actual termination, it has been universally held that such an officer does not hold for a “term of office.” State v. Gordon, 238 Mo. 168; State v. Oklahoma City, 38 Okla. 349; Somers v. State, 5 S. Dak. 321; City of Lexington v. Rennick, 105 Ky. 779; State v. Boughner, 55 N. J. Law, 380.
In these cases, it is considered that the period of tenure does not constitute a term, since the continuance of the incumbency is uncertain and unfixed, until, by the order of the appointing power, the service is terminated. An appointment, then, to hold, not for any specific duration of time, but during the pleasure of the incumbent, unless sooner removed for cause, can hardly be said to be more definite as to period of tenure than an appointment to hold during the pleasure of the appointing power.
In Minnesota the supreme court has passed upon the identical question under consideration here, in the case of State v. District Court, 134 Minn. 26. The workmen’s compensation act in that state, like our own, excepted from its operation a city official appointed for a “regular term of office.” The court, holding that a member of the police department was not excluded from the operation of the act, said: “Under the Duluth charter policemen receive their office by appointment under civil service rules. They hold office during good behavior. There is no term at all.
The defendant has raised a further question that a policeman in the city of Omaha is an employee of a governmental agency of the state, and. is employed in the governmental capacity of the state, and not for the gain or profit of the employer,' and that, under section 8656, Rev. St. 1913, he is expressly exempted from the operation of the compensation law. It is manifest that such a policeman, in the general service of the city as a policeman, is not employed fór the pecuniary gain or profit of the city. This case is controlled hy the decision in Ray v. School District of Lincoln, p. 456, post, and, for the reasons therein set out, «plaintiff is not entitled, as we view it, to a recovery in this case.
The former opinion of this court is therefore modified to the extent above stated, and the motion for rehearing is
Overruled.