Opinion
Department Two
Appeal from an order of the Superior Court of Fresno County, dissolving an injunction.
COUNSEL:
Frank H. Short, George A. Nourse, C. C. Merrian, and Austin & Drew, for Appellant.
Reel B. Terry, for Respondents.
JUDGES: Belcher, C. Searls, C., and Vanclief, C., concurred. McFarland, J., De Haven, J., Fitzgerald, J.
OPINION
BELCHER, Judge
[34 P. 679] The city of Fresno is a municipal corporation, organized in 1885, under the provisions of an act of the legislature approved March 13, 1883, entitled "An act to provide for the organization, incorporation, and government of municipal corporations." It is of the fifth class named in the act, and has a board of trustees vested with power, among other things, "to provide fire-engines and all other necessary or proper apparatus for the prevention and extinguishment of fires; to appoint and remove such policemen and other subordinate officers as they may deem proper, and to fix their duties and compensation; to establish fire limits, with proper regulations"; and "to do and perform any and all other acts and things necessary to carry out the provisions of this chapter," etc. (Sec. 764, subds. 6, 15, 18, 19.)
The city now owns, and ever since its incorporation has owned, three fire-engines and other apparatus for the prevention and extinguishment of fires, and it also has, and has had, a volunteer fire department.
In 1891 there was a city ordinance, No. 224, providing:
" Section 1. The fire department of this city shall consist of volunteer companies of firemen, organized into engine, hose, and hook and ladder companies, who shall elect their officers."
" Sec. 2. The chief of the fire department and his assistants shall be elected annually by members of the department, with the approval of the board of trustees, and shall give such bond as the board of trustees may require."
On the 18th of January, 1892, an ordinance, No. 248, was passed amending the foregoing ordinance and reading as follows:
" Section 1. The fire department of the city shall consist of volunteer companies of firemen, organized into engine, hose, and hook and ladder companies, who shall elect their own officers, to wit: the foreman, who is the presiding officer, a secretary, and a treasurer."
" Sec. 2. The chief of the fire department and his associates shall be appointed annually by the board of trustees, to hold office each for one year, or until his or their successors are appointed and qualified. And the chief of the fire department shall give a bond," etc.
" Sec. 3. This ordinance shall take effect and be in force immediately from and after its passage and approval."
In December, 1891, the plaintiff, E. R. Higgins, was elected chief of the fire department by the members thereof, and on the 21st of that month notice of such election was given to the board of trustees. It being suggested that the trustees must make the appointment themselves in order to make it legal, the matter was continued from time to time until February 1, 1892, when the plaintiff was appointed chief by the trustees.
Thereafter, on March 7, 1892, the board of trustees passed a resolution declaring the position of chief of the fire department vacant, and then appointed the defendant, Timothy Walton, to fill the vacancy. The trustees also, by resolution, directed the city marshal to put the said Walton in possession of all the fire apparatus owned by the city. The plaintiff, when notified of this action of the trustees, denied their right to remove him from his position as chief, or to take from his possession and control the fire apparatus of the city; and thereupon, on March 8th, he commenced this action against the trustees, the city marshal, and the said Walton, alleging, among other things, that he was then the chief of the volunteer fire department of the city, and as such was in possession and entitled to the possession of all the fire apparatus of the city; that all the acts of the trustees in declaring his position vacant and electing Walton to fill his place, and in directing the city marshal to take from his possession the fire apparatus and to deliver possession of the same to Walton, were done without right or authority of law; that the marshal and Walton had demanded that plaintiff deliver to them the possession of the said apparatus, and had threatened to take immediate and unlawful possession of the same, and unless restrained would proceed forcibly, unlawfully, and wrongfully to execute their threats. Wherefore he prayed that the court make an order enjoining the defendants, and each of them, from taking forcible or other possession of said fire apparatus, or interfering with the same, or molesting the plaintiff's possession thereof.
Upon this complaint the court granted a temporary injunction, but subsequently, on motion of defendants, dissolved it; and from that order the plaintiff appeals. In support of the appeal it is contended:
1. That the members of the fire department were authorized and empowered to elect a chief of the department, without the approval of the board of trustees, and that the appellant, having been so elected, was clothed with authority to hold possession of, manage, and control, the fire apparatus of the city; and that the trustees had no right to interfere with or disturb his possession, management, and control thereof.
2. That if the [34 P. 680] trustees had the right to appoint a chief, their action in removing appellant, after he had been appointed by them and before the expiration of his term of office of one year, was without authority of law, and was null and void.
That part of the Act of 1883, relating to municipal corporations of the fifth class, and under which Fresno was organized as a corporation, contains no special provisions in regard to a volunteer or paid fire department, and we are cited to no general statute providing that any fire department shall have authority to elect its own chief. Section 3335 of the Political Code provides how fire companies may be formed and organized in incorporated and unincorporated cities, towns, or villages. Section 3336 provides that "every such fire company must choose or elect a foreman, who is the presiding officer, and a secretary and treasurer," etc. And sections 3342 and 3343 prescribe the duties of the chief of the fire department. In none of these provisions, however, is anything found which can be construed as giving the chief a right to the possession or control of the fire apparatus, or prescribing the manner of his election or appointment.
This being so, appellant had no rights or authority, as chief of the fire department, except such as he acquired under the ordinances of the city. His first contention cannot therefore be sustained.
The solution of the second question presented must depend upon the validity and effect of Ordinance No. 248. Appellant contends that that ordinance was ultra vires, and void, but no constitutional provision or statute is cited, and we know of none, with which it is in conflict. By the statute under which the city was organized the board of trustees was given power "to pass ordinances not in conflict with the constitution and laws of this state or of the United States" (sec. 764, subd. 1); and the ordinance in question must therefore be held valid.
The ordinance, in effect, provided that the chief should be appointed to hold office for one year, or until his successor should be appointed and qualified. This, as we understand it, must be construed as declaring only that the term of office shall continue until a successor is elected and qualified, and not necessarily for a full year. And under the statute providing that the trustees may "appoint and remove such policemen and other subordinate officers as they may deem proper," it would seem that they had no power to limit their right of removal.
The constitution declares: "When the term of any officer or commissioner is not provided for in this constitution, the term of such officer or commissioner may be declared by law; and, if not so declared, such officer or commissioner shall hold his position as such officer or commissioner during the pleasure of the authority making such appointment." (Sec. 16, art. XX.)
As the term of office of the chief of the fire department was not fixed by the constitution nor declared by law, it must be held that appellant's term continued only during the pleasure of the appointing power, and that he was rightly removed.
In making the order appealed from the court below held that injunction was not in any event the proper remedy to determine the plaintiff's rights; but in view of the fact that counsel earnestly ask for a decision on the merits, that question may be passed without further notice.
We advise that the order be affirmed. For the reasons given in the foregoing opinion the order appealed from is affirmed.