104 Ky. 372 | Ky. Ct. App. | 1898
delivered the opinion oe the coubt.
Appellant in this action claims that he was unlawfully dismissed from the detective department of the police force of the city of Louisville, on the 31st day of August, 1896, without notice or trial, by the Board of Public .Safety of that city; that he has been ready and willing to discharge the duties of his office ever since; but that he has been wrongfully deprived of the privilege of doing so; and he seeks in this action to recover his salary from the date of the alleged unlawful dismissal until the institution of this suit. Appellee denies the allegations of the petition, and in the third paragraph of its answer alleges that the plaintiff has been employed in other pursuits during the period for which he seeks to recover salary, and that the jdaintiff had, for a large part of the time, by his voluntary acts, placed it out of his power to render any service for the appellee as a detective; and by the fourth paragraph it pleads the provisions of section 2882, Ky. Stats., limiting the time when actions of this, character can be brought to six months from the date of the accrual thereof. The law and facts having been submitted to the court on the issues, the court rendered an opinion holding that appellant was entitled to notice of the charges against him, and was entitled to be present and heard at the trial thereof, and that he had been unlawfully dismissed from the police force, but further holding that the plaintiff’s action for salary was barred by the limitation of six months fixed by the statute; and, in pursuance to this opinion, judgment wras rendered dis
. By the provisions of the act of March 23, 1894, known as-the “Metropolitan Police Law,” which was an amendment to charters of cities of the first class, the government of the police department and of the police force of the city of Louisville was vested in the Board of Public Safety, who are authorized and empowered by section 2 of that, act (which is now section 2874 of the Kentucky Statutes),, “to make, adopt» and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and police force and the-members thereof. The board shall have power, and is. authorized to adopt rules and regulations for the examination, hearing, investigation and determination of charges made or preferred against members of the said police force, but no member or members of the police force (except as provided in this chapter) shall be fined, reprimanded, removed, suspended or dismissed from the police force, until written charges have been made or preferred against him or them, nor until such charges have been examined, heard and investigated before said board, upon such reasonable notice to the member or members charged, and in such manner of procedure, practice, examination and investigation as the said Board of Safety may, by rules and regulations, from time to time, prescribe.” It will be observed that the only exception in the statute of the necessity of notice and investigation is when a member of the force is voluntarily absent for five consecutive days,, or is disabled by mental unsoundness. Section 2882, Ky. Stats., provides the causes for which stoppages of pay, suspensions, and dismissals from the force may be made, and further provides that “no action, suit or proceeding,.
But a more serious question for the plaintiff is raised by the general demurrer filed by defendant. There is no allegation in plaintiff’s petition that his title to the office in question has been determined in his favor by a competent tribunal, in a direct proceeding instituted for that purpose. This, in our opinion, is a necessary allegation to enable him to maintain this action, as he can not maintain an action against the city for alleged salary accruing subsequently to his removal if at the time of his removal 'another person was selected and appointed to fill the office, to whom the salary has been paid, until there has been an adjudication as to plaintiff’s right, in a direct proceeding declaring him entitled to the office 'and his successor a usurper. This question has frequently been the subject of judicial construction. Judge Dillon, in his work on Municipal Corporations (8d Ed., section 831), says: “Where the salary or fees of an office of a municipal or public corporation may, like other debts, be recovered by an action at law against the corporation, this ordinarily is the remedy, and not mandamus; but, if the officer can not sue the corporation, he may, where entitled, compel payment by means of this writ, unless another is in possession under color of right, in which case the title to the office can not ordinarily be determined on mandamus or in any collateral proceeding.” And in Selby v. Portland, 14 Or. 234 [12 Pac. 377], this identical