Callis, Mayor, v. Brown
| Decision Date | 21 June 1940 |
| Citation | 283 Ky. 759 |
| Parties | Callis, Mayor, et al. v. Brown. |
| Court | United States State Supreme Court — District of Kentucky |
2. Municipal Corporations. — In suit against mayor and city council by former police officer for injunctive relief and for reinstatement to police force, defenses that plaintiff, at time of application, was more than 50 years of age and therefore ineligible, and that council had full power to decrease number of policemen in interest of economy, presented such matters of defense as would, prior to any attempt to remove a serving officer, necessitate preference of charges, with a right to be heard (Ky. Stats., sec. 3351a-2. subd. 3).
3. Estoppel. — In suit against mayor and city council by former police officer for injunctive relief and for reinstatement to police force, it was no answer to defense that plaintiff at time of application was more than 50 years of age and therefore ineligible, that council had appointed others who were over 50 years of age, since the fact that council had failed to observe the law in other instances would not redound to plaintiff's benefit by way of "estoppel," though the fact might be considered in support of a charge that his removal was capricious or arbitrary (Ky. Stats., sec. 3351a-2, subd. 3).
4. Municipal Corporations. — The prohibitions in the statute relating to qualifications for members of the police department would be read into an ordinance attempting to fix qualifications for applicants for police service, though the ordinance made no mention of age limits (Ky. Stats., sec. 3351a-2).
5. Municipal Corporations. — Generally, in absence of constitutional provision safeguarding it to them, municipalities have no right to self-government beyond the legislative control of the state (Constitution, sec. 156).
6. Municipal Corporations. — A city has no power to ignore restriction contained in statute as to the age limit for appointment of applicants for positions in city's police force or fire department (Ky. Stats., sec. 3351a-2).
7. Municipal Corporations. — The term "otherwise qualified," as used in statute providing that members of police and fire departments "otherwise qualified" under the law shall hold their positions during good behavior, means such qualifications as are specifically provided by statute (Ky. Stats., sec. 3351a-2).
8. Municipal Corporations. — A city council and not examining board is the body which passes on the statutory qualifications of applicants for positions in city's police and fire departments (Ky. Stats., sec. 3351a-2).
9. Officers. — The rule that one who undertakes to recover an office must not only allege, but, if necessary, prove his eligibility to hold the office, does not apply to personal characteristics.
10. Municipal Corporations. — The proper authorities of a city may remove a police officer without hearing if the police officer does not clearly bring himself within the immune class under statute (Ky. Stats., sec. 3351a-2).
11. Municipal Corporations. — In suit against mayor and city council by former police officer for reinstatement to police force, issue whether reduction of police force at time when plaintiff was removed was in good faith, was raised, where at time of plaintiff's removal police force was reduced by four, and though there were some interim appointments, they were on emergency occasions (Ky. Stats., sec. 3351a-2).
Appeal from Warren Circuit Court.
Charles R. Bell, Guy Herdman and James W. Blackburn, Jr., for appellants.
Harlin & Harlin for appellee.
Before Robert M. Coleman, Judge.
Reversing.
Appellants, the mayor and members of the council of Bowling Green, a city of the third class, were defendants to a suit instituted by appellee, involving his claimed right to continue to act as police officer of the city.
In his pleadings he alleged that he was a resident of the city, "more than 21 years of age, and that he had made application for the position on the police force prior to December 4, 1933." He was later recommended by the then mayor, and took an examination before the police committee. This body reported that it had "made the necessary examination" of several applicants, including appellee, and recommended them for patrol duties. The report failed to state that they had found applicants qualified, but here this omission is immaterial.
Appellee executed bond; took oath and began his duties in December of 1933, serving until May, 1939, when he was promoted to the position of assistant chief of police, and served as such until December, 1939, when he was removed by a newly elected mayor and board of councilmen. He asserts that all steps taken by him and the 1933 councilmen, were in strict conformity to the then existing statutes and ordinances, and that the action of the board in discharging him was capricious, arbitrary, without charges preferred, and contrary to applicable statutes and ordinances.
He claims that at the time of his removal the board, upon a pretext of economy, due to lack of finances, undertook to reduce the police force from 18 to 12 members, though later employing others, including an alleged inspector or instructor of police, who was not qualified, and for which appointment there was no lawful provision.
He then alleges specifically facts which he contends show that the reduction of the force was not in good faith, since followed by substituting others in the stead of those attempted to be removed. His pleading sets out necessary technical grounds usually employed in seeking injunctive relief, which in this case was contained in his prayer that the board be required to reinstate him to the police force.
The defendants filed joint and separate answer, in which, while admitting allegations of the petition not subject to denial, they denied so much of the petition as was material, as they believed to a defense. They also filed an amended answer, which in the greater part was a repetition of their already too lengthy original answer. Such parts as were in fact amendatory will be noted.
Briefly, the reasons set out for removal of appellee, and which constitute their defense, may be summarized thus: (1) The original appointment of appellee, and his elevation in rank, were due solely and alone to an effort on the part of the appointing bodies to pay appellee for past political activities and services rendered in their behalf. (2) That at the time of his removal, appellant by reason of physical disability was unfit for police duty. (3) The appointment was made without examination, and without regard to qualification or lack of qualification. (4) At the time of his appointment appellee had not served as police officer for five consecutive years. (5) Appellant at the time of application was more than 50 years of age, therefore ineligible. (6) Under the applicable law the board had full power from time to time to decrease the number of policemen, as the council deemed proper, and this they did in the interest of economy. (7) Appellant was properly removed because he was not in sympathy with the newly elected council in its desire and effort to carry out a program of law enforcement, and his activities were such that he was unfit to serve as police officer.
The issues were completed by replies, except as later noted, and order controverting certain pleadings of record. Prior to the completion of issues, and at proper times, appellants demurred to the petition and replies of appellee, and he filed motions to strike the greater portions of the answer and amended answer of appellants. In fact the motion to strike appears to have gone to nearly all the material allegations of the answer, and likewise the demurrers went to most, if not all, the substantially material charges.
Upon submission the court, in an opinion in which the pleaded facts were stated, indicated that the appellee was entitled to full relief, solely as it appears, on the question of seniority rights, pointing out that the "seven men originally appointed in 1931, and the five appointed in 1934, which five includes the plaintiff in this action, are the twelve senior members of the Bowling Green police force."
Digressing for the moment, we fail to find any then existing authority to uphold this expression of opinion by the chancellor. The court probably had in mind Section 3138-3, Kentucky Statutes, applicable to cities of the second class, which expressly provides that in cases of reduction of the force, the members older or longer in service shall have preference over those younger in the point of service, and which we construed in Singery v. City of Paducah, 253 Ky. 47, 68 S.W. (2d) 770. We have also examined the two ordinances filed with appellee's amended petition, which relate to the appointment of and service by policemen, and fail to find that there is any provision relating to seniority rights. Whether such provision was omitted from Section 3351a-2 intentionally or otherwise, we are unable to say.
Following, in point of time, the chancellor's opinion, a judgment was entered, in which for the first time during the proceedings the court passed on the appellee's motion to strike, and all demurrers. The chancellor sustained plaintiff's motion to strike "certain portions of the defendant's answer and amended answer" which matters are "embraced in said motion and are particularly referred to and set out therein."
As indicated above, the sustaining of this motion took out of the pleadings the greater material part thereof. The court then overruled defendant's demurrer to plaintiff's petition, and sustained the...
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