892 STOCKBURGER V. CRUSE. [1.91 STOCKBURCER V. CRUSE. 4-4058
Opinion delivered November 25, 1935. 1. MUNICIPAL CORPORATIONS—DISCHARGE OF POLICEMAN.—Acts 1933, No. 28, creating a board of civil service commissioners of cities of the first-class and prohibiting the discharge of a member of the police department without written notice and for cause, held inapplicable to the dismissal of a policeman in May, 1933, when the act did not become operative in the city until adopted in an election held in 1934. 2. MUNICIPAL CORPORATIONS—SUBMISSION OF ORDINANCE TO POPULAR VOTE.—Acts 1933, No. 28, § 18, providing for suspension of the act creating a board of civil service commissioners for cities of the first class until approved by the voters, held not to violate Const. Amdt. No. 7, which prohibits submission by the General Assembly of acts to the people, but recognizes the rights of municipalities and counties to enact local legislation. Appeal from Washington Circuit Court; John S. Combs, Judge; affirmed. John Mayes and Oscar E. Williams, for appellant. Rex Perkins and Karl areenhaw, for appellee. BUTLER, J. Prior to February 13, 1933, Troy Stock-burger was a member of the police force of the city of Fayetteville, holding the position of assistant chief . of police. There was also a chief of police and three or
ARK.] STOCKBURGER V. CRUSE. 823 four patrolmen. On the date mentioned the city council of Fayetteville, by proper resolution, provided for four policemen, a chief of police, a motorcycle man, and two night men, one. at a salary of $60 and the other at $40 a month.. The effect of this resolution was tO eliminate the position of assistant chief of police. The mayor of the city suffered StockbUrger to remain on tbe police force until May 22, 1933, when the chief of police -, acting under the order of the mayor, served Stockburger with written notice that he was no longer in the employ of the city. After some inquiry made to the city council, Stockburger presented a petition to the circuit court for a writ of certiorari. He alleged that the action of the mayor and council was in violation of act No. 28 of the Acts of 1933, approved February 13, 1933, which act provides for the creation of a: board - of civil service commissioners for cities of the first class. This act, among other things, provided that no member of any police department affected by the act should be discharged without being notified in writing, and that such discharge would only be for cause. The trial court heard the testimony of witnesses, and denied the prayer of plaintiff 's-petition, .from-which-action of the conrt this appeal has been prosecuted. The testimony introduced by the appellant Cstab-lished the fact that his services bad always been satisfactory, and that he had been an able and faithful officer ; also, that he was not advised prior to his dismissal that such was contemplated, and no reasons • were ever given him for this action by the governing body of the .city. The evidence on behalf of the city was to the effect that the sole reason for the abolition of the position of assistant chief of police was to effect a saving in the- expense of the police department, and that the fact that the position was abolished was the cause of the appellant's dismissal. On appeal it is urged that the trial court should have complied with § 1309 of Crawford Moses' Digest, by making a separate finding of fact and conclusions of law as requested by the appellant, and that the undisputed evidence in the case disclosed a plain violation of
824 STOCKBURGER V. OltUSE. [191 the provisions of act No. 28, supra. Other questions are argued by counsel for the respective parties, none of which need be discussed, as we agree with the appellee in the contention that the act relied upon by the appellant was not in operation at the, time the city council abolished the position of assistant chief of police; or when Stockburger was formally notified on May 22d, following, that his services had been dispensed. If we give any effect to § 18 of said act, this conclusion necessarily follows. That section provides : • "If within ninety (90) days from the passage of 'this act, the requisite number of qualifiedelectors of any city affected by said act shall file a petition with the city clerk of said city requesting said act -to be- submitted :to a 'vote of the people, then said act shall be suspended until same is voted on and approved. Upon -the necessary petition being filed with the city clerk, it shall be his- duty to certify sai&act at the next city general election to be voted for or against, and -the result shall be determined as now provided by law in Such cases." The record discloses that within ninety days - the requisite nUmber of electors of the city filed a : petition requesting the submission of the act-to a vote of the people, and the same was voted on at the following city general election on the day of April, 1934. At that' election the act was adOpted; and subsequently the board of civil service •commissioners was appointed, and thereafter and not befOre, was , the act. effective as to the city of Fayetteville. •Fiveash v. Holderness, 190 Ark. 264, 78 S. W. (2d) 820, it was suggested in argument by counsel that § 18 of act No. 28, -supra, offended against a part of the I. & R. Amendment (No. 7) to the Constitution of 1874. This question was pretermitted by the learned trial court and not noticed by this court in its opinion upholding the trial court's decision on other grounds. That part of Amendment No. .7 (I. & R.) is as follows : "This section shall not be construed to deprive any member of the General Assembly of the right to introduce any measure, but no measure shall be submitted to the people by the General• 'Assembly, except a proposed constitu-
ARTC] 895 tional amendment or amendments as provided for in this Constitution." The Legislature did not attempt, by the . section of the act quoted, to submit the act to the people, but simply recognized the constitutional right of municipalities to regulate their local affairs by a majority vote of the qualified electors of the municipality: The act 'Was general in its scope,.but, by § IS, could be localized . so as to meet the needs Of the individual: municiPalities 'of the State. This section was in recognition of °Amendment No. 14 to the Constitution prohibiting the General Assembly from passing any. local or specinl act, and.had mind also that section of Amendment No. 7, which reserves . to municipalities and counties JIM right to . enact local and special legislation. This being the pnrpose and effect of § 18, there was therefore no violation of the inhibition on the Legislature contained in the section of the I. & R: Amendment above quoted. The result of our views necessarily compels au affirmance of the judgment of the , trial court,• and it is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.