Blackwell v. City of Thayer

• Citation: 101 Mo. App. 661,74 S.W. 375
• Parties: BLACKWELL v. CITY OF THAYER.
• Decision Date: 28 April 1903
• Court: Court of Appeal of Missouri (US)

74 S.W. 375

101 Mo. App. 661

BLACKWELL v. CITY OF THAYER.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

MUNICIPAL CORPORATIONS—PUBLIC OFFICERS —SUSPENSION—SALARY.

1. An officer who is lawfully suspended cannot recover his salary for the period covered by the suspension, irrespective of whether he is finally removed.

2. Under Rev. St. 1899, § 5904, providing that in cities of the fourth class elective and appointive officers may be removed by a two-thirds vote of the board of aldermen, and authorizing the board to regulate the manner of impeachment and removals, a city of this class has power to provide by ordinance that, pending the investigation of charges preferred against an officer, he may be suspended by a three-fourths vote of the board of aldermen.

Appeal from Circuit Court, Oregon County; W. N. Evans, Judge.

Action by George H. Blackwell against the city of Thayer to recover salary as city marshal. Judgment for plaintiff, and defendant appeals. Reversed.

H. D. Green and R. L. Pounders, for appellant. Haris, Parham & Meeks, for respondent.

Opinion.

GOODE, J.

Respondent, George H. Blackwell, was the duly elected, qualified, and acting marshal of the city of Thayer, a city of the fourth class. On April 30, 1902, charges were preferred against him by the mayor, the purport of which was that he was interested in a gambling hall, gambled himself, and encouraged gambling by notifying individuals that they might do so within that city without interference. The first result of the charges was that the council suspended him from office pending an investigation. Impeachment proceedings and several criminal prosecutions were then instituted against him. Blackwell afterwards resigned the office of marshal, and both the prosecutions and the impeachment case were dismissed; the appellant claims pursuant to a compromise or agreement that Blackwell should resign, and forego his salary during the time he was suspended from office. It seems that meanwhile Blackwell had instituted an action before a justice of the peace to recover his salary, which action was afterwards dismissed, and this one begun. The defenses are: First, a prior judgment in favor of the city, rendered by a justice of the peace, in an action involving the same subject-matter this one involves —that is to say, a plea of res judicata; second, that Blackwell agreed to relinquish his salary while he was suspended from office in consideration of the dismissal of the prosecutions and the impeachment; and, third, that as a matter of law he was not entitled to a salary for that period, whether such an agreement was made or not. At the trial in the circuit court no evidence was introduced to support the plea of former adjudication, and there was quite a conflict in the testimony as to whether there was a compromise agreement made by which Blackwell released his salary in consideration of the dismissal of the proceedings against him. The point left for determination is whether, without regard to the disputed compromise, he is entitled to his salary during the time he was suspended, it being admitted that he was not removed from office,...