Gorley v. City of Louisville

• Decision Date: 30 September 1898
• Citation: 104 Ky. 372,47 S.W. 263
• Parties: GORLEY v. CITY OF LOUISVILLE. [1]
• Court: Kentucky Court of Appeals

47 S.W. 263

104 Ky. 372

GORLEY v. CITY OF LOUISVILLE. ^[1]

Court of Appeals of Kentucky.

September 30, 1898

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by James T. Gorley against the city of Louisville to recover salary as member of the police force. Judgment for defendant and plaintiff appeals. Reversed.

H. S. &amp M. S. Barker, for appellant.

Henry L. Stone and H. L. Stone, for appellee.

BURNAM J.

Appellant in this action claims that he was unlawfully dismissed from the detective department of the police force of the city of Louisville, on the 31st day of August, 1896, without notice or trial, by the board of public safety of that city; that he has been ready and willing to discharge the duties of his office ever since; but that he has been wrongfully deprived of the privilege of doing so; and he seeks in this action to recover his salary from the date of the alleged unlawful dismissal until the institution of this suit. Appellee denies the allegations of the petition, and in the third paragraph of its answer alleges that the plaintiff has been employed in other pursuits during the period for which he seeks to recover salary, and that the plaintiff had, for a large part of the time, by his voluntary acts, placed it out of his power to render any service for the appellee as a detective and by the fourth paragraph it pleads the provisions of section 2882, Ky. St., limiting the time when actions of this character can be brought to six months from the date of the accrual thereof. The law and facts having been submitted to the court on the issues, the court rendered an opinion holding that appellant was entitled to notice of the charges against him, and was entitled to be present and heard at the trial thereof, and that he had been unlawfully dismissed by the police force, but further holding that the plaintiff's action for salary was barred by the limitation of six months fixed by the statute; and, in pursuance to this opinion, judgment was rendered dismissing appellant's petition, from which this appeal is prosecuted.

By the provisions of the act of March 23, 1894, known as the "Metropolitan Police Law," which was an amendment to charters of cities of the first class, the government of the police department and of the police force of the city of Louisville was vested in the board of public safety, who are authorized and empowered by section 2 of that act (which is now section 2874 of the Kentucky Statutes), "to make adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and police force and the members thereof. The board shall have power, and is authorized to adopt rules and regulations for the examination, hearing, investigation and determination of charges made or preferred against members of the said police force, but no member or members of the police force (except as provided in this chapter) shall be fined, reprimanded, removed, suspended or dismissed from the police force, until written charges have been made or preferred against him or them, nor until such charges have been examined, heard and investigated before said board, upon such reasonable notice to the member or members charged, and in such manner of procedure, practice, examination and investigation as the said board of safety may, by rules and regulations, from time to time, prescribe." It will be observed that the only exception in the statute of the necessity of notice and investigation is when a member of the force is voluntarily absent for five consecutive days, or is disabled by mental unsoundness. Section 2882, Ky. St., provides the causes for which stoppages of pay, suspensions, and dismissals from the force may be made, and further provides that "no action, suit or proceeding, either at law or in equity, shall be commenced or maintained against the city, board of public safety, or any member thereof, or against the mayor, or member or members of the general council, by any member or officer, or former member or officer of, or belonging to, the police force or department of said city, to recover or compel the payment of any salary, pay, money or compensation for or on account of any service or duty, or to recover any salary, compensation or moneys, or any part thereof, forfeited, deducted or withheld for any cause, or to restore or re-instate to the police force or department, any member or officer thereof, unless such action, suit or proceeding shall be commenced within six months after such cause of action shall have accrued." It is evident from these provisions of the statute that the board of public safety exceeded their authority when they undertook to remove appellant from his office as policeman in the detective department, without charges, notice, or trial. All the authority given them in this matter is contained in the statute, and they are...