City of Middlesboro v. Byrd

• Decision Date: 10 February 1933
• Parties: CITY OF MIDDLESBORO et al. v. BYRD et al.
• Court: Kentucky Court of Appeals

57 S.W.2d 49

247 Ky. 348

CITY OF MIDDLESBORO et al. v. BYRD et al.

Court of Appeals of Kentucky

February 10, 1933

Appeal from Circuit Court, Bell County.

Suit by Cloyd Byrd and another against the City of Middlesboro and others. Judgment for plaintiffs, and defendants appeal.

Reversed with directions.

Martin T. Kelly, of Pineville, and Chas. E. Herd, of Middlesboro for appellants.

Arthur W. Rhorer and E. P. Nicholson, Jr., both of Middlesboro, and N. R. Patterson, of Pineville, for appellees.

PERRY J.

Middlesboro is a city of the third class, operating under the commission form of government.

On April 26, 1932, the city commissioners passed a resolution reducing the regular police of the city of Middlesboro, then consisting of four officers, to the number of two, and therein directed its commissioner of public safety to designate the two of its four officers who would be dropped from the force pursuant to this resolution, which was to become effective June 1st following.

This was done by the commissioner, resulting in the dismissal from the force of appellees, Cloyd Byrd and Williard Davis.

These policemen thus removed from their positions filed a suit in the Bell circuit court, wherein, after averring that Middlesboro was a city of the third class, operating under the commission form of government, and reciting that the city, acting through its board of commissioners, had passed this resolution reducing its police force to the number of two, and that, in carrying the same into effect, they had been dropped from their positions, they complain that the act of the commissioners was, in so removing them, not one done in good faith, but was capricious and arbitrary and actuated by the motive of giving their positions to their political adherents and friends; that spite and prejudice were the guiding factors in their dismissal; that the commissioners have accomplished this, their unlawful object, through the guise or subterfuge of appointing special policemen; that, though the resolution reducing the force had declared its object to be one of economy, and its passage prompted by lack of revenue with which to pay the salaries of the then full police force, such purpose was not the true one or the real motive of the commissioners, nor has the proposed economic plan of policing the city pursued by them after the passage of the cost-saving resolution resulted in any saving to the city during the months in which tried, of June, July, and August, through which the same was in operation, but had rather resulted in increased cost to the city for its police protection over and above the amount it had cost when it employed only the four regular policemen.

Plaintiffs filed the resolution passed by the city as an Exhibit A with their petition, and which is as follows:

"Whereas: the financial condition of the city is such it is now unable to pay its current obligations and it is within the knowledge of the Board of Commissioners that other debts against the city will from time to time mature which will increase its obligations beyond its ability to pay, and Whereas, the Police Department revenue to the city has become so reduced it has become necessary to pay for the maintenance of this department from other sources of revenue which the city is not longer able to provide, and

Whereas the law provides that the Board of Commissioners may decrease the number of its policemen or firemen as it may from time to time deem.

Now therefore, be it resolved that it is the judgment of the Commissioners that the Police Force should be and hereby is reduced to the number of two policemen and that after such reduction is made the force remaining shall consist of a Chief of Police and one patrolman, and the Commissioner of Public Safety is hereby directed to dismiss from the force such number of policemen now on service effective May 1st, 1932, in excess as herein set forth, and he will report to the Board at its next regular meeting his action, and he will furthermore promulgate such order pertaining to his department as may seem to him proper for the time of service of the policemen as will secure protection to the public, compatible with the provisions hereof."

The petition alleged further that they had by such methods been lawfully and arbitrarily discharged from the police force by the commissioners, and sought an injunction requiring the commissioners to reinstate them upon the city's police force, with all the rights and emoluments belonging to their positions as such policemen, and that they be adjudged to recover their back salaries owing them for the three months of June, July, and August, 1932, during which, it is alleged, they were wrongfully discharged and removed from their positions.

Defendants filed demurrer to the petition, also a motion to dismiss the suit for want of jurisdiction, and an answer traversing the averments of the petition.

The cause being finally submitted upon its merits, upon the pleadings and proof heard, the learned chancellor adjudged that the plaintiffs had been wrongfully removed by the defendant city and board of commissioners, and directed that the commissioners reconvene and reinstate the plaintiffs to their positions as regular policemen of the city, with all the rights and emoluments belonging to such office, which they would hold until their removal should be effected as prescribed by the statute laws of the state of Kentucky.

Complaining of this judgment as erroneous, and seeking its reversal, the city of Middlesboro and board of commissioners prosecute this appeal.

The questions here presented are: (1) the right of the board of commissioners to pass this resolution resulting in appellees' dismissal as patrolmen, while serving under civil service regulations; (2) whether their dismissal constituted a discharge of them as patrolmen without cause shown, upon hearing, therefor; and (3) whether or not the complained of act of the commissioners was unreasonable, capricious, and arbitrary, entitling the plaintiffs to the injunctive relief of reinstating them to the positions from which they had been removed.

The evidence shows that, after the stated reduction of the regular police force from four members to two members, becoming effective June 1, 1932, the city appointed, on different occasions, a number of special patrolmen; also that T. G. Roberts, who was appointed a special collector, in January, 1932, continued to serve at his regular monthly salary of $90 as special collector, with added police duties; also that "Doc" Chadwell, appointed in the prior January as a deputy jailer at $75 a month, continued to serve the city both as such officer and also as a special policeman, without extra charge by reason of his added duties; that is, their service to the city as special policemen, both before and after June 1, was rendered without extra pay therefor in connection with the duties of their other positions, to which they had been regularly appointed and employed prior to the discharge on June 1st of plaintiffs as patrolmen.

Also it appears that the city had for some two years paid to the Merchants' Association of Middlesboro $30 a month, with which to assist it in the employment of "special policemen"; that N. A. Johnson, who, it is alleged, was appointed by the board as a regular night policeman, as substitute for the plaintiff Byrd, was only given three days' employment as special policeman after June 1 at a cost of $9 therefor to the city; and that beyond this any service rendered as special night policeman by Johnson during these months was rendered by him under arrangement with the Merchants' Association or other employer, and paid for by such employer without cost therefor to the city.

It further appears by the evidence that the city at this time had experienced much difficulty in collecting license taxes and fines, and had appointed several special collectors, with police duty given them, to assist in the collection of the large amount of these delinquent taxes. It is also shown by the evidence that it had been the custom of the city commissioners, long prior to June 1, when as a result of the complained of resolution passed the appellees were dismissed as patrolmen, to employ extra or special policemen for special occasions, and that it had appointed several parties, including those named in plaintiff's petition, as special policemen during the summer of 1932 upon different occasions of conventions held in the city or for other occasions and other events deemed to call for extra police protection.

The appellees, plaintiffs below, contend that, as the cost to the city of the reduced police force, plus the extra employees serving as special police or special collectors doing police work, was more, they claim, in its total amount for the months of June, July, and August, than what would have been the salary cost to the city for its four regular policemen, therefore such alleged result proved that the board of commissioners had not acted in good faith in reducing the regular police force for the alleged purpose of economy.

On the other hand, the appellants contend that the change in its police department effected by the resolution complained of did in fact result in a saving to the city and also in securing increased tax revenues through the agency of the special collectors, appointed with added...