Beverly v. City of Hattiesburg

• Decision Date: 15 February 1904
• Citation: 35 So. 876,83 Miss. 342
• Court: Mississippi Supreme Court
• Parties: THADDEUS W. BEVERLY v. CITY OF HATTESBURG

35 So. 876

83 Miss. 342

THADDEUS W. BEVERLY v. CITY OF HATTESBURG

Supreme Court of Mississippi

February 15, 1904

FROM the circuit court of, second district, Perry county. HON JOHN R. ENOCHS, Judge.

Beverly appellant, was plaintiff in the court below; the city of Hattiesburg, appellee, was defendant there. From a judgment in defendant's favor, plaintiff appealed to the supreme court.

The facts are sufficiently apparent from the opinion of the court.

Affirmed.

Parker & Davis, for appellant.

The appellant brings this suit on open account for services rendered as a policeman of the city by appointment from the mayor, the power to appoint being delegated to the mayor by the board of mayor and aldermen. The record shows that there was no ordinance creating the office of policeman of the city, defining the powers, duties, term of office, etc. Beverly was merely a patrolman employed by contract and not a public officer in the meaning of the law. Showley v Brooklyn, 30 Hun. (N. Y.), 396; 42 N.Y. 289. He was a mere agent or employe. People v. Pinkney, 32 N.Y. 377; 40 Mich. 673; 35 Iowa 561.

This case does not come within the rule announced in Matthews v. Copiah County, 53 Miss. 715, as regards public officer suing for compensation for official service, putting their title to the office in issue. And even if it should, the testimony shows that he was duly appointed by the mayor to serve in the capacity of a policeman under authority delegated to the mayor by the board of mayor and aldermen.

Inasmuch as there was no ordinance creating the office of policeman and providing for the election of same, under Code 1892, § 2490, the board of mayor and aldermen had the right to delegate said power to the mayor for manifest reasons arising from convenience and necessity. Rich v. McLaurin, Ante., 95.

Hartfield & McLaurin, for appellee.

The appellant sued for a salary as policeman of the city of Hattiesburg, the appellee herein. By virtue of the relations that policemen sustain to the general public they are officers, and not mere laborers. The courts uniformly refer to policemen as "officers" and "officials," but never as "laborers" or "employes." Craug v. Charleston, 1 Mun. Corp. Cases, 139 and notes; Gray v. Griffin, 4 Mun. Corp. Cases, 149; Dunn v. Hamm, 7 Mun. Corp Cases, 846; Neumeyer v. Krakel, 7 Mun. Corp. Cases, 853; Venable v. Police Com., 7 Mun. Corp. Cases, 826; Bringold v. Spokane, 8 Mun. Corp. Cases, 827; Fowler v. Kansas City, 8 Mun. Corp. Cases, 23; Upshar v. Ward, 8 Mun. Corp. Cases, 948; Norton v. Adams, 9 Mun. Corp. Cases, 949; Roth v. Kurtz, 9 Mun. Corp. Cases, 950; Williams Mun. Liability for Torts, p. 37, sec 19; Dillins' Mun. Cor. 4th ed., secs. 60, 61, 210, 211, 975, 414, and note; Johnson v. State, 31 So. 493; Buttrick v. Lowell, Am. Dec., 721; Cobb v. Portland, 92 Am. Dec., 598; McElroy v. City Council, 38 Am. Rep., 791; Steubenville v. Culp, 43 Am. Dec., 417, and note; Mangam v. Brooklyn, 50 Am. Rep., 705; Fitzgerald v. New Brunswick, 54 Am. Rep., 182; Pollock's, Admr. v. Louisville, 26 Am. Rep., 260, and cases there cited; Fox v. McDonald, 21 L. R. A., 529. Many other cases sustain the same position.

The appellant admits that he is an officer by offering a commission in evidence. He further admits the same fact by withdrawing that commission and electing to claim as a hold-over officer from a former administration. He, therefore, cannot recover on a quantum recruit "for work and labor done and performed." He sues for official salary, and attempts to prove official character, and he must stand or fall by his title to the office which he claims to hold. He brings himself within the rule announced in Matthews v. Copiah County, 53 Miss. 715.

Appellant claims to have been appointed or elected to office seven years ago, and not since. The old office force cannot project themselves into the new administration. The police force of a city are not a self-perpetuating body. Title to office cannot be acquired by prescription. Mississippi Constitution 1890, sec. 20.

Appellant being an usurper in office, whatever services rendered against the will of the governing board were purely voluntary.

OPINION

CALHOON, J.

Beverly sued the city for "services rendered on police force" from January 14 to February 28, 1903, and got judgment in the court of a justice of the peace for the amount of his claim, and the city appealed to the circuit court, which peremptorily instructed the jury to find for the city.

Appellant had served the city as policeman for about seven years, going in originally under commission, and then holding over from term to term, and being paid up to January 14, 1903, when the municipal council elected a new set of policemen, and the old set, Beverly included, were informed that they would not be paid any longer. Mr. Beverly testified that he was" sworn in" by the mayor January 14, 1903, but not pursuant to any...