186 S.W.2d 936 | Ark. | 1945
Appellant, City of Van Buren, by this appeal, asks us to reverse summary judgment against it, rendered by the lower court, in favor of appellee for $2,404.86, being the amount found to be due to him as salary during the time he was suspended from duty as chief of police as a result of an order of the Civil Service Commission of Van Buren.
The controversy growing out of this order has twice been considered by us. On the first appeal (Civil Service Commission of Van Buren v. Matlock,
Shortly after our last judgment was entered appellee filed in the lower court petition for summary judgment in the sum of $2,483.91 against appellant, alleging that he was entitled to this sum for salary "at the rate of $105 per month from June 22, to December 1, 1942, aggregating $551.25 and at the rate of $115 per month from December 1, 1942, to December 31, 1943, aggregating $1,495 and at the rate of $130 per month from January 1, 1944, to April 11, 1944, aggregating $137.66."
In its response appellant set up these defenses, which are considered by us in the order stated: (I) That when appellee resumed his position as chief of police after the matter had been finally determined by the courts this amounted to an "accord and satisfaction" of appellee's claim for back salary; (II) that appellee, in the proceeding involving his appeal from the commission's order, should have asked judgment for salary claimed by him, and that, since he did not do so, his claim must be treated as having been adjudicated in that proceeding and consequently barred; (III) that in any event appellant would only be liable for $415, salary as chief of police for one month, and the difference between the salary of chief of police and that of patrolman during the remainder of the period appellee was out of office; (IV) that no judgment could be recovered by appellee for liability on salary accruing during the years 1942 and 1943 because the city revenues of both of these years had been exceeded by expenditures and the provisions of Amendment No. 10 to the Constitution of Arkansas (forbidding cities and counties to spend in any year more than the amount of their revenue for such year) precluded further payments on claims arising during those years. The cause was tried in the lower court on an agreed statement of facts.
Furthermore, in less than a month from the time the commission made its second order by which appellee was suspended as patrolman, the commission rescinded its action in so suspending him and notified him to resume his position as patrolman, which appellee declined to do.
Appellee, in seeking reinstatement as chief of police and recovery of salary due to him, relied solely on the provisions of the civil service law. He cannot ask the benefits of this law without assuming its burdens. Under this law it was his right and his duty, if he wished *534
to retain his connection with the police department, to continue as patrolman until his appeal was heard and determined. Had he done so he would have received the salary of $90 per month which the city presumably was compelled to pay to another man. Therefore he is not entitled to recover from the city this portion of his salary, which he would have received if he had obeyed the order of the commission. The holding by us in the case of Fort Smith v. Quinn,
It follows that the judgment of the lower court should be modified so as to fix the amount of appellee's recovery at $415, from which must be deducted the amount of $76.45, conceded, to be due from appellee to appellant for costs, making the net amount of judgment in favor of appellee $338.55, with interest thereon from May 3, 1944, until paid at the rate of six per cent. per annum; and, as so modified the judgment of the lower court is affirmed.