City of Paducah v. Gillispie

• Decision Date: 15 February 1938
• Citation: 115 S.W.2d 574,273 Ky. 101
• Parties: CITY OF PADUCAH v. GILLISPIE et al.
• Court: Kentucky Court of Appeals

115 S.W.2d 574

273 Ky. 101

CITY OF PADUCAH v. GILLISPIE et al.

Court of Appeals of Kentucky

February 15, 1938

Rehearing Denied May 3, 1938.

Appeal from Circuit Court, McCracken County.

Suit by J. H. Gillispie and others against the City of Paducah Kentucky, for a writ of mandamus to require the restoration to them of their positions in the municipal police and fire departments, respectively, and payment of their salaries wherein William Sheehan intervened seeking the same relief with respect to his position as a fireman. From a judgment in favor of J. H. Gillispie and William Sheehan, the defendant appeals, and the named plaintiff and the intervener file cross-appeals.

Judgment reversed in so far as it relates to the named plaintiff and intervener, and affirmed on the cross-appeals.

W. V Eaton, of Paducah, for appellant.

L. B Alexander, of Paducah, for appellee.

STANLEY Commissioner.

In City of Paducah v. Gibson, 249 Ky. 434, 61 S.W.2d 11, it is shown that in February, 1932, in order to reduce expenses, the city commissioners of Paducah resolved that the fire department be decreased by ten men. Gibson and five others were among those let out. In their suit it was held that they were wrongfully discharged and were entitled to restoration because of seniority rights under Civil Service Law, Ky.St. § 339a-1 et seq.

Under the same resolution certain policemen were discharged, and in Singery v. City of Paducah, 253 Ky. 47, 68 S.W.2d 770, it was held that the policemen so removed were entitled to reinstatement and to recover their respective salaries during the period covered by their wrongful removal; it being shown that no other men had been appointed or had served in their places or been paid in their stead.

The cases were again before us under the style of City of Paducah v. Singery and City of Paducah v. Gibson, 255 Ky. 644, 75 S.W.2d 210. Other issues had been raised after the former decisions. It was held that certain of the discharged policemen and firemen were entitled to their salaries. Later, Gillispie, Davis, and Prince, who had been discharged under the same resolution as policemen, and Slaughter and Sheehan, as firemen, brought suits for restoration and their salaries. It was adjudged that Gillispie was entitled to recover his position and his accumulated salary from the time he filed suit. It was adjudged that Sheehan, who was a fire captain at the time of his discharge, was also entitled to reinstatement as a fireman and to recover his salary as such; the court being of opinion that while the city had no right to discharge him altogether, it did have the right to reduce him in rank. Davis, Slaughter, and Prince were adjudged not to be entitled to relief. The city has appealed the judgment in favor of Gillispie and Sheehan. They cross-appeal so much of the judgment as limits the recovery of their compensation to the time of filing their suit, and Sheehan as refuses him a place as captain.

Gillispie's suit was not filed until November, 1934, which was after the last decision had been rendered affirming the judgment setting up seniority rights and the adjusted roster of the policemen. Recognizing the finality of the former opinions, the city makes no present claim of justification for Gillispie's removal. Among other defenses to his action it set up the judgment in the suit of Singery and his coplaintiffs, and alleged that Gillispie had actively participated in the prosecution of that suit without asserting his claim to seniority until long afterward, and was thereby estopped from doing so at this time. It also pleaded that soon after his discharge Gillispie had taken up his residence on his farm about ten miles from the city and because of his nonresidence he had become ineligible for membership in the police department. We pass over these grounds of defense with the statement that we do not find the facts disclosed by the evidence sustain them.

A plea of laches is asserted. It is predicated upon the proposition that Gillispie's delay in bringing suit worked an injury in this: That while he was standing by inactive, one of the junior policemen was retained and paid, which would not have been done had he seasonably asserted his rights; that the complement of the police force and the seniority of other men had been established in accordance with the ordinance, and to hold Gillispie entitled to the emoluments of the place would have the effect of increasing the force beyond that established by the ordinance and thereby disturb the city's finances.

"Laches" in its general definition is laxness; an unreasonable delay in asserting a right. In its legal significance, it is not merely delay, but delay that results in injury or works a disadvantage to the adverse party. Thus there are two elements to be considered. As to what is unreasonable delay is a question always dependent on the facts in the particular case. Where the resulting harm or disadvantage is great, a relative brief period of delay may constitute a defense while a similar period under other circumstances may not. What is the equity of the case is the controlling question. Courts of chancery will not become active except on the call of conscience, good faith, and reasonable diligence. 10 R.C.L. 395. The doctrine of laches is, in part, based on the injustice that might or will result from the enforcement of a neglected right. 21 C.J. 212; Glock's Adm'r v. Weikel, 149 Ky. 170, 147 S.W. 897.

With full knowledge of the facts and of pending litigation involving them, Gillispie did not join with most of his comrades similarly affected, or bring a separate suit to enforce his rights, but waited two years and nine months before bringing his suit. Though from time to time during the first year he amicably endeavored to secure reinstatement, he made no claim to any right of compensation. He was given a few days work as an extra policeman. It is inferable that during this period Gillispie did not sue as a matter of prudence or expediency, having hope of restoration. In such circumstances one is entitled to less favorable consideration. Thorn Wire Hedge Company v. Washburn & Moen Mfg. Co., 159 U.S. 423, 16 S.Ct. 94, 40 L.Ed. 205. After the year, he seems to have abandoned all efforts even to be reinstated. He does testify that he was advised by an attorney that the Singery suit had gone too far for him to intervene in it.

The public interest was and is involved. "It is indisputable that gross neglect or laches may operate to defeat a claim if the disturbance resulting from the establishment of the claim would make it a matter of public policy that the claimant shall abide the consequences of his own failure. This doctrine was laid down in Spalding v. St. Joseph's Industrial School, 107 Ky. 382, 54 S.W. 200, 21 Ky.Law Rep. 1107, where there is an exhaustive discussion of the subject." Davis v. Bush, 198 Ky. 558, 249 S.W. 327, 329.

The call for the application of the doctrine of laches is perhaps greater because the legislative body of the municipality acting under unquestioned authority, in good faith reduced the number of men on the police force for the purpose...