Buckalew v. City of Grangeville
Decision Date | 21 September 1979 |
Docket Number | No. 12696,12696 |
Citation | 100 Idaho 460,600 P.2d 136 |
Parties | Runyan A. BUCKALEW, Plaintiff-Respondent, v. The CITY OF GRANGEVILLE, a Municipal Corporation, Defendant-Appellant. |
Court | Idaho Supreme Court |
Dennis L. Albers, Grangeville, for defendant-appellant.
William H. Foster, Grangeville, for plaintiff-respondent. BISTLINE, Justice.
Plaintiff (Buckalew) filed a complaint against defendant City of Grangeville (City) for salary Buckalew claimed was due him as Grangeville's appointed police chief, from which position he claimed to have been wrongfully discharged. We reversed on appeal and remanded the cause to the district court to determine whether Buckalew had been hired for a specific term. Buckalew v. City of Grangeville, 97 Idaho 168, 540 P.2d 1347 (1975).
A trial to the court was held. The City attempted to introduce evidence that Buckalew was working at another job during the period for which he sought compensation. The court ruled this evidence inadmissible.
After all of the evidence had been presented, the trial court in its memorandum decision held that Buckalew had been hired for a specific term from February 20, 1973 to January 7, 1974, and awarded him judgment for his salary in the amount of $4,109; that trebled by application of I.C. § 45-615(4); 1 and attorneys fees pursuant to I.C. § 12-121 2 in the amount of $3,340. The City has appealed to this Court.
The City's first contention is that the trial court erred in finding that Buckalew was appointed for a specific term. We cannot agree. This Court has consistently held that findings of fact by the district court will not be set aside on appeal unless they are clearly erroneous and are not supported by substantial and competent evidence. I.R.C.P. 52(a); Lewis-Clark Memorial Gardens, Inc. v. City of Lewiston, 99 Idaho 680, 587 P.2d 821 (1978); Isaacson v. Obendorf, 99 Idaho 304, 581 P.2d 350 (1978); Lester v. Lester, 99 Idaho 250, 580 P.2d 853 (1978); Rife v. Rife, 98 Idaho 923, 576 P.2d 204 (1978); Idaho Water Resource Bd. v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976); and others.
Here there is substantial and competent evidence supporting the challenged finding: the mayor must comply with all city ordinances, I.C. § 50-602; 3 Grangeville City Ordinance No. 1-10-2 provides that all appointments shall be made for a specified term; Buckalew was appointed by the city council, and Buckalew testified that "I was advised as long as Bos was mayor, I would be Chief of Police," and that previous Chief Pelton told Buckalew the mayor's term expired in January, 1974. There was conflicting testimony presented by Mayor Bos, but the credibility of the witnesses and the weight to be given their testimony are exclusively within the province of the trier of facts. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976); Comish v. Smith, 97 Idaho 89, 540 P.2d 274 (1975); Thomson v. Marks, 86 Idaho 166, 384 P.2d 69 (1963); State v. H & K Construction Co., 75 Idaho 492, 274 P.2d 1002 (1954).
The City next contends that the court erred in refusing to admit any evidence on the amount of compensation earned by Buckalew in other occupations between July 1, 1973 and January 7, 1974.
The trial judge was correct in this ruling. The general rule is that:
"A public officer who is prevented, without any fault on his part, from performing the duties of his office, and while so excluded, earns wages in another employment, or could have earned such wages, may recover his full salary for the period of his wrongful exclusion from office without crediting thereon by way of mitigation of damages his earnings during such period."
Annot. 150 A.L.R. 100, 102 (1944). Accord, Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (Ark.1937); Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614 (1908); Sevigny v. City of Biddeford, 344 A.2d 34 (Me.1975); Andrews v. City of Portland, 79 Me. 484, 10 A. 458 (1887); McKenna v. Commissioner of Mental Health, 347 Mass. 674, 199 N.E.2d 686 (1964); Wilkinson County Board of Supervisors v. Jolliff, 230 So.2d 61 (Miss.1969); Wessler v. City of St. Louis, 242 S.W.2d 289 (Mo.App.1951); State v. Board of County Com'rs, 121 Mont. 162, 191 P.2d 670 (1948); Wynne v. City of Butte, 45 Mont. 417, 123 P. 531 (1912); Jardot v. City of Rahway, 2 N.J.Misc. 742, 3 N.J.Misc. 201, 127 A. 799 (1924); Bookhout v. Levitt, 43 N.Y.2d 612, 403 N.Y.S.2d 200, 374 N.E.2d 111 (1978); Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787 (1886); Reising v. City of Portland, 57 Or. 295, 111 P. 377 (Or.1910); Coble v. School District of Metal, 178 Pa.Super. 301, 116 A.2d 113 (1955); LaBelle v. Hazard, 91 R.I. 42, 160 A.2d 723 (1960); State v. Hager, 154 W.Va. 606, 177 S.E.2d 556 (1970); 63 Am.Jur.2d Public Officers and Employees § 402 (1972).
In Wynne v. City of Butte, supra, the plaintiff was a chief of police who was unlawfully removed from office and another chief of police was appointed and paid in his place. In regard to the money earned by plaintiff during the period from his dismissal to his reinstatement, the court, 45 Mont. 417, 123 P. at 532, said:
(Citations omitted)
According to the annotation in 150 A.L.R. 100, 103:
The City next contends that the trial court erred in awarding Buckalew treble damages pursuant to I.C. § 45-615(4). We agree. The same principles which allow a public officer the special exception of not having to mitigate his damages or to offset his earnings obtained from other employment against his recovery for lost salary are equally applicable in determining whether a public officer is covered by I.C. § 45-615. In discussing this statute in Goff v. H.J.H.Co. 95 Idaho 837, 839-40, 521 P.2d 661, 663-64 (1974) this Court pointed out that:
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