89 So. 15 | La. | 1921
Defendant appeals from a judgment declaring him dismissed and discharged from the position of superintendent of the electric light and waterworks plant of the city of Opelousas, and enjoining him to abstain from interference with the management or control of the plant.
The judgment was rendered on the pleadings and annexed documents. The facts of the case are therefore not disputed. Defendant, being one of two applicants for the position of superintendent of the electric light and waterworks plant, was elected by vote of the board of aldermen on the 7th of December, 1920, for a term expiring on the 10th of May, 1922, at the salary of $275 per month. He-was given authority to employ and discharge all employees in that department. In February, 1921, defendant took offense at what he deemed an interference by the mayor with the management of the electric light and waterworks department, and struck the mayor on the leg with a whip. A special meeting of the board of aldermen was immediately called, for the purpose of acting in the matter of the dismissal and discharge of the superintendent, and to take any and all action in reference thereto that the board might deem necessary, and for the further purpose of suspending any existing rule or order with reference to the dismissal of employees, if same should be deemed necessary. The mayor presided at the meeting, and four of the five members constituting the board ef aldermen were present. The absentee was not in the city, and was not served with the notice, which was left at his residence about three hours before the meeting. The city attorney attended the meeting, and advised that the board could not legally, at that meeting, adopt an ordinance to repeal an existing ordinance, because the purpose of doing so had not been stated in the call for the meeting. One of the aldermen then offered a resolution to suspend “the rule with reference to the dismissal of employees of the city." The so-called rule, which the resolution was
“An ordinance for the purpose of regulating the manner in which town officers and employees shall be employed, tried and discharged.
“Section 1: Be it ordained by the mayor and board of aldermen of the town of Opelousas that no new office or position of emolument shall be created, made or appointed by this board unless the office or position shall first be discussed and passed upon by the board and two-thirds voting in favor of such new office or position.
“Section 1 adopted by tlie following yea and nay vote, to wit: Against: Estorge. For adoption: Norman, Boagni, Sandoz, Saizan, Lareade.
“Sec. 2: Be it further ordained by the board of aldermen of the town of Opelousas that the officers employed by the board of aldermen, or by officers of the town authorized to do so, shall not be tried and discharged for malfeasance or neglect of duty, or any other cause, except by a board composed of two-thirds of the members present.
“Be it further ordained that, in order to have two-thirds of the board present to try such cases, the members present shall compel the attendance of absent members and may impose a fine of $10.00 upon the absent notified members and compel their attendance by sending the town marshal to arrest the absentees. and try them before the board.
“Section 2 adopted by the following yea and nay vote, to wit: Against: Estorge. For adoption:' Sandoz, Chachere, Norman, Saizan, Boagni and Larcade.”
’ It appears that the city attorney also advised the mayor and the board of aldermen that the ordinance providing an exclusive method for discharging employees of the city could not be repealed or suspended by mere resolution.' But the alderman who had introduced the resolution insisted upon its being put to a vote. The result was a tie vote, two aldermen voting for and two against the adoption of the resolution, whereupon the mayor cast the deciding vote in favor of the resolution. The alderman who had introduced the resolution then offered the following resolution, .viz.:
“Resolved that George C. Jordan, superintendent of the city’s power plant, be, and he is hereby, dismissed and discharged for good and sufficient causes, among, others, for insubordination and for assaulting the mayor while the latter was in the discharge of his official duties.
“Resolved further that the mayor and power house committee be, and they are hereby, authorized to take charge of said power plant and to see that it is operated to the best advantage until a new superintendent be employed and qualified.”
The vote on the resolution discharging the superintendent was the same as on the resolution purporting to suspend the ordinance that stood in the way, the mayor casting the deciding vole in favor of the adoption of both resolutions.
On advice of his attorney, defendant refused to surrender his office or employment, claiming that the hoard of aldermen could not discharge him without allowing him a hearing, in conformity with the ordinance on the subject.
The theory on which the district court rendered judgment on the pleadings and without hearing evidence was that defendant’s only recourse was to claim his salary for the unexpired portion of the term of his employment. For that reason, it was stated in the judgment that it was rendered without prejudice to the defendant’s right, if any he had, to sue for the salary for the unexpired part of his term of employment. The court had reference to article 2749 of the Civil Code, viz.:
“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”
“All ordinances shall be read and considered by sections at a public meeting of the mayor and board of aldermen, and the vote on their final passage shall be taken by ‘yeas’ and ‘nays,’ which shall be entered on the minutes by the clerk.”
The copy of the ordinance in question, as embodied in the minutes of the meeting at which it was adopted, and as heretofore quoted in this opinion, shows upon its face that each section was adopted by a yea and nay vote on final passage of the ordinance, which, in our opinion, was a compliance with the statute on the subject.
The judgment appealed from is annulled, and this suit is dismissed at the cost of the relator.