Callis v. Brown

• Decision Date: 21 June 1940
• Citation: 142 S.W.2d 675,283 Ky. 759
• Parties: CALLIS, Mayor, et al. v. BROWN.
• Court: Kentucky Court of Appeals

142 S.W.2d 675

283 Ky. 759

CALLIS, Mayor, et al. v. BROWN.

Court of Appeals of Kentucky

June 21, 1940

Appeal from Circuit Court, Warren County; Robert Coleman, Judge.

Suit by David H. Brown against T. B. Callis, Mayor, and others for injunctive relief, and to require the reinstatement of plaintiff to the police force of the city of Bowling Green. From an adverse judgment, the defendants appeal.

Judgment reversed, with directions to set aside injunctive orders, and for proceedings not inconsistent with opinion.

Charles R. Bell, of Bowling Green, Guy Herdman, of Frankfort, and James W. Blackburn, Jr., of Bowling Green, for appellants.

Harlin & Harlin, of Bowling Green, for appellee.

MORRIS Commissioner.

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 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 § 3138-3, K. S., 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 plaintiff's demurrer to the answer and amended answer, on the ground that the pleadings did not sufficiently set up matters of defense.

The cause was then submitted on the pleadings and exhibits, which practically meant on plaintiff's petition and exhibits, and granted a mandatory injunction, enjoining and restraining the authorities from removing appellee; commanding them to restore his status and rights, with pay to continue as previously fixed.

Adopting the process of elimination, we may say that charge (4), as set up in answer, is of little importance in the discussion of the alleged defenses. It appears from the exhibits that there was some sort of an examination given appellee prior to his appointment. In passing on this matter of five years' previous service, we held that it exempted from examination such applicants as had served as a policeman continuously for five years from June 15, 1921, which was the effective date of the act now incorporated in the statutes. Therefore, appellant was required to take an examination, and the presumption is indulged that the committee conducting the same performed their duties, and such presumption prevails until the contrary is shown. It may be that under a more direct charge, it would be proper to allow proof on the question.

For the purpose of brevity, we may group each and all further defenses set up in answer, save (5) and (6), since, as we view them, they present such matters of defense as would, prior to any attempt to remove a serving officer, necessitate the preference of charges, with a right to be heard. It will be noted that the controlling statute, after a manner fixing such qualifications, and providing that certain persons should not be appointed, recites: "No member or officer of the police or fire department shall be removed from the force or fire department, reduced in grade, or pay, upon any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the commissioners." Section 3351a-2, subsec. 3, Ky. Stats.

The statute then, in a not too clear a manner, provides (and we have so construed it) that in all cases where the removal or reduction is attempted for any of the above specified reasons, charges must be preferred, and a hearing conducted in the manner set out in the section, supra. So, it is apparent that in order to remove or reduce in rank or pay any serving officer, on any of the named grounds, charges and hearing were necessary.

We take up now defenses (5) and (6), the one raising the question of eligibility, and the other the right of the city to reduce its force on grounds of necessity or economy.

In plaintiff's petition it was alleged that at the time of his appointment he was "more than 21 years of age." In answer it was plead that at that time he was more than 50 years of age. In amended answer it is charged that at the time of his selection he was ineligible, since he was then 57 years of age, and in "addition thereto physically unfit for police service." The latter part may be put in the...