Harrell v. City of Middlesboro

• Decision Date: 24 February 1956
• Citation: 287 S.W.2d 614
• Parties: Guy HARRELL, Appellant, v. CITY OF MIDDLESBORO, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 614

287 S.W.2d 614

Guy HARRELL, Appellant, v. CITY OF MIDDLESBORO, Appellee.

Court of Appeals of Kentucky.

Feb. 24, 1956.

A. E. Funk, Jr., Middlesboro, for appellant.

H. Kelly Clore, Pineville, for appellee.

MOREMEN, Judge.

This is an appeal from a judgment of the Bell Circuit Court which upheld an order of the Middlesboro Common Council dismissing the appellant, Guy Harrell, from his duties as chief of police of the city of Middlesboro. In the proceedings before the common council to oust Harrell, he was charged with and convicted of conduct unbecoming an officer, insubordinatioin and inefficiency.

Upon appeal to the circuit court, Harrell filed a motion for trial by jury which motion was properly overruled on January 10, 1955. City of Owensboro v. Noffsinger, Ky., 289 S.W.2d 517. The following day Harrell filed motion with a supporting affidavit (under KRS 23.230) and requested the trial judge to vacate the bench. This motion was overruled on February 15, 1955, and in a trial held the same day, judgment was entered upholding the action of the common council; hence this appeal.

Harrell contends that: (1) the trial court committed reversible error in refusing to vacate the bench; and (2) the evidence was insufficient to justify appellant's dismissal as chief of police.

We have held that objection to a trial judge must be made before entrance of general appearance or the submission of preliminary motions preparatory to trial, McGill v. Coomer, 309 Ky. 703, 218 S.W.2d 947, the theory being that the party, already in possession of facts which he believes should disqualify the judge, must make known these facts at the outset and not wait until the judge has made a ruling against him before moving for disqualification. The affidavit in support of the motion to vacate indicates that Harrell was aware of the facts allegedly disqualifying the judge when he made the preliminary motion. His motion came too late.

Under the second ground urged for reversal, we will discuss only those incidents which we believe were fully proved, and will keep in mind the rule stated in the recent case of Grubbs v. City of Middlesboro, Ky., 284 S.W.2d 668, 669, where it is said:

'This court cannot usurp the functions of local governing agencies where it is apparent their powers were exercised reasonably. Williams v. City of Newport, 229 Ky. 810, 18 S.W.2d 283; Northcutt v. Hardebeck, 244 Ky. 842, 52 S.W.2d 901.'

The statute which grants authority for the removal of a member of the police department, KRS 95.450, reads in part:

'* * * no member of the police or fire department in cities of the second and third classes shall be reprimanded, dismissed, suspended or reduced in grade or pay for any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the city legislative body, * * *.'

It may be noted that the above statute is very broad and general in nature and makes no attempt to define specific acts which may be classified as constituting inefficiency, misconduct or insubordination. Even the expression, 'violation of law,' is so broad that it is not of great value as a guidepost. We can only surmise the General Assembly used these general terms because it intended that they might properly be defined by the accepted rules of conduct in a particular community where they applied.

In order that the terms might be interpreted in the light of the customs of the community, their application and definition were left to the legislative body of that particular political entity instead of to the courts, except upon appeal. So, under this statute, the legislative body is...