22 S.W.2d 255 | Ky. Ct. App. | 1929
Reversing.
Ashland is a city of the second class. Its charter provides for the appointment of policemen and firemen on the merit system, with power in the legislative branch of the city to suspend or dismiss them from the service after hearing on specific charges, with the right of appeal by the person found guilty, first, to the circuit court and then to the Court of Appeals, provided the punishment be a suspension of more than 30 days, or a reducing the grade of an officer, or a removal or dismissal from the police force or fire department, but the statute declares that "the judgment of said board under such charges shall not be suspended pending said appeal." Sections 3137 to 3138-5, Ky. Stats. *836
After a hearing James A Barney, a policeman in the city of Ashland, was dismissed from the service by the general council on the charge of "drinking spirituous or alcoholic drinks on or about the 5th day of March, 1926." On appeal to the circuit court the action of the general council was sustained. On appeal to this court it was held that Barney's removal was improper, and the judgment was reversed, and cause remanded, with directions to set aside the order of removal. Barney v. City of Ashland,
Thereafter Barney brought this action against the city of Ashland to recover his salary during the time the removal was effective, although the salary was paid to another policeman who was appointed and served in his stead. During the pendency of the action Barney died, and the cause was revived in the name of his administrator. On final hearing judgment was rendered in favor of Barney's estate for the amount of the salary, subject to certain credits representing the amount of Barney's earnings during the time the removal was effective. The city appeals.
In reaching the conclusion that Barney's administrator was entitled to recover, the learned special judge declined to follow the cases of Kammerer v. City of Louisville,
The rule that payment to a de facto officer is a defense to the de jure officer's claim for salary for the same period has for its basis the public interest, which is paramount to the rights of the officer. The exigencies of society require efficient performance of official duty, and prompt payment is necessary to such performance. Disbursing officers of municipalities are not clothed with judicial power to determine whether or not a person vested with the indicia of an office and performing its duties is in fact a de jure officer where there has been no judicial determination of that fact. To require the public authorities to withhold the pay of an incumbent or public officer until a judicial decision, or pay the same at the peril of having to pay a second time, would be a source of much embarrassment, and greatly tend to impair the efficiency of the public service. For these reasons the rule is not affected by the fact that the disbursing officers know that the right to the office is in litigation, 22 R. C. L. 543, or that the de facto officer is insolvent. In addition to the cases referred to, the general doctrine finds support in the following cases: Nall v. Coulter,
For the reasons given the judgment is reversed, and cause remanded, with directions to dismiss the petition.