
    CITY OF TULSA v. COCKRELL.
    No. 31473.
    April 23, 1946.
    Rehearing Denied June 18, 1946.
    Second Petition for Rehearing Denied Feb. 11, 1947.
    
      176 P. 2d 818.
    
    E. M. Gallaher, L. A. Justus, Philip J. Kramer, and C. Lawrence Elder, all of Tulsa, for plaintiff in error.
    M. C. Spradling, of Tulsa, for defendant in error.
   PER CURIAM.

This is an appeal by the city of Tulsa from a judgment rendered in favor of L. L. Cockrell. The action by Mr. Cockrell was brought to recover salary as a member of the city police department and was predicated on the theory that he was removed from office in violation of the provisions of section 30, art. 11, of the city charter. This section provides:

“All policemen and firemen of the City of Tulsa shall hold their positions during good behavior, and shall not be removed from the same except for such cause as in the opinion of the Board of Commissioners renders them unfit to remain in the service of the city, and after written notice, giving the grounds for such discharge or removal, and an opportunity to be heard on such charges or reasons.”

The evidence discloses that plaintiff had been duly appointed as member of the police department of defendant city; that at the time of his appointment the department consisted of 140 men; that the city by resolution fixed the salary of each member of the department; that the total salaries as fixed by such resolution exceeded the appropriation made by the excise board for this purpose for the then fiscal year of approximately $10,000. On May 5, 1938, the city enacted an ordinance whereby the police force was reduced from 140 men to 124 men. Under a later ordinance the force was further reduced to 99 men. This resulted in a removal of certain members from the force. Plaintiff was one among those removed.

The evidence discloses that it was essential to reduce the number of the police force in order to bring the expenditure of the department within the appropriation and within the constitutional debt limit as provided by section 26, art. 10, of the State Constitution. At the beginning of the succeeding fiscal year, and after a new budget, on July 1, 1938, the city enacted a new ordinance whereby it increased its police force from 99 men to 142, thus providing for 43 additional men, which were thereafter appointed by the city. Plaintiff, however, was not re-employed.

The trial court reached the conclusion that plaintiff was removed as a member of the police force in violation of the terms of the city charter and rendered judgment in his favor. It is the contention of the defendant that the conclusion so reached and the judgment rendered is contrary to law. This contention must be sustained. In the case of City of Tulsa v. Johnson, 193 Okla. 501, 145 P. 2d 198, it is said:

“A municipality of this state may reduce the number of its policemen when .such reduction is necessary to keep its expenditures within the debt limit for municipalities provided in our State Constitution even though its charter contemplates that policemen shall hold their office during good behavior.”

In the case of City of Tulsa v. Pender, 194 Okla. 674, 154 P. 2d 99, we said:

“A provision of the city charter which provides that policemen may not be removed except for cause, upon hearing, does not mean that policemen who are removed from the force by a reduction in members of the police department to keep expenditures within constitutional provisions constitute a preferred class or reserve who must be given first consideration in the filling of vacancies thereafter.”

The facts in the instant case are very similar to the facts in the above cases. What is there said applies here.

Defendant in error insists that, because plaintiff in error, defendant below, although demurring to his evidence, failed to move for judgment at the conclusion of all the evidence, this court will not review the evidence to see whether the judgment is sustained thereby. However, this cause was tried to the court without the intervention of a jury, was submitted on argument and briefs to the trial court, and we think this contention is without merit under the record herein.

The judgment is reversed and the cause remanded with directions to dismiss.

GIBSON, C.J., HURST, V.C.J., and OSBORN, BAYLESS, WELCH, CORN, and DAVISON, JJ., concur. RILEY, J., dissents.  