City of Natchez v. McGehee

• Decision Date: 21 April 1930
• Docket Number: 28645
• Citation: 157 Miss. 225,127 So. 902
• Court: Mississippi Supreme Court
• Parties: CITY OF NATCHEZ v. MCGEHEE

127 So. 902

157 Miss. 225

CITY OF NATCHEZ v. MCGEHEE

No. 28645

Supreme Court of Mississippi

April 21, 1930

Division A

Suggestion of Error Overruled, May 26, 1930.

APPEAL from circuit court of Adams county HON. R. L. CORBAN, Judge.

Action by J. M. McGehee against the City of Natchez. From a judgment for plaintiff, defendant appeals. Affirmed in part and reversed in part, and rendered.

Affirmed in part, and reversed in part.

S. B Laub and W. C. Martin, both of Natchez, for appellant.

As to a servant of the city with peculiar duties to discharge there undoubtedly rests in the city the power, when by disease, or other cause, the officer has become unsound in mind or body, or both, to the extent that he cannot perform duties which are required of him, and which are within the scope of his employment, to drop him from the force.

2 Abbot on Municipal Corporations, page 1662; McNab v. Common Council of Bay City, 125, Mich. 51, 83 N.W. 1022; State v. Walbridge, 153 Mo. 194, 54 S.W. 447; Moore v. State, 54 Neb. 486, 74 N.W. 823; Clarke v. City of Cape May, 50 N.J.L. 558, 14 A. 581; Leary v. City of Orange, 59 N.J.L. 350, 35 A. 786.

The case of Town of Senatobia v. Ryan, 63 So. 68, has been clearly overruled and is not the law now in the state of Mississippi.

Moore v. Tunica County, 143 Miss. 839, 108 So. 900; Yazoo County v. Grabel, 111 Miss. 892, 72 So. 77.

Interest is a creature of the statute and neither the state nor its political subdivisions are liable therefor unless imposed by a statute in which they are specifically named or clearly embraced.

Moore v. Tunica County, 143 Miss. 839, 108 So. 900; Anderson v. Issequena County, 75 Miss. 896; Board of Supervisors v. Kline, 51 Miss. 807; Clay County v. Chickasaw County, 64 Miss. 534; Yazoo City v. Taylor, 104 So. 111; Yazoo County v. Grabel, 111 Miss. 892, 72 So. 77.

Kennedy & Geisenberger, of Natchez, for appellee.

Where the power of removal is limited to specific causes, the removing authority cannot remove for any cause not so specified.

46 C. J., sec. 147; Section 21 of Charter of City of Natchez.

Interest may be allowed against a municipality.

Town of Senatobia v. Ryan, 63 So. 68; Section 2680, Miss. Code 1906; Sec. 2226, Hemingway's Code 1927.

Argued orally by S. B. Laub, for appellant, and by A. H. Geisenberger, for appellee.

OPINION

Smith, C. J.

The appellee sued and obtained a judgment against the appellant for salary alleged to be due him as city policeman.

The charter of appellant provides for the annual election of the subordinate city officers by the mayor and aldermen in council. In February, 1928, the appellee was elected a policeman by the mayor and aldermen for a term of one year. One of his duties was to act as traffic officer at street intersections when directed so to do by a superior officer. This duty he declined to discharge. A report thereof was made to the mayor and aldermen who called him before them, whereupon he informed them that his skull had been fractured several years before, leaving him in such a nervous state that he was afraid to act as traffic officer, for the reason that he might endanger the safety of himself and persons on the street. He was not incapacitated for the discharge of his other duties. The mayor and board of aldermen then suggested that he take a leave of absence, which he agreed to, and did take, with the hope that his condition might be improved thereby. Afterwards he reported to the mayor and aldermen for duty and stated that he had recovered, presenting a physician's certificate that he was physically sound. The mayor and aldermen declined to reassign him to duty, but removed him from office, their reason therefor being that on his own admission he was incapacitated to act as a traffic officer.

The city charter provides that the "Mayor and Aldermen in council shall have power to expel from office upon conviction for malfeasance or misfeasance the Mayor and Aldermen, or any of the elected and subordinate officers of said city, by a recorded vote of seven members of the council at two successive meetings thereof, but not a second time for the same cause." An ordinance provided the procedure for the removal of an officer under this section, which was admittedly not complied with here.

At the close of the evidence, which it will not be necessary to further set out, the court below directed the jury to return a verdict for the appellee for an amount of arrears of his salary less what he had earned in the meantime by other work, and there was a verdict and judgment accordingly.

The grant of power to the mayor and aldermen to remove incumbents from office is only "upon...