Rosser v. City of Russellville

• Decision Date: 30 January 1948
• Citation: 306 Ky. 462,208 S.W.2d 322
• Parties: ROSSER v. CITY OF RUSSELLVILLE et al.
• Court: Kentucky Court of Appeals

208 S.W.2d 322

306 Ky. 462

ROSSER v. CITY OF RUSSELLVILLE et al.

Court of Appeals of Kentucky

January 30, 1948

Appeal from Circuit Court, Logan County; E. J. Felts, Judge.

Action by Roy Rosser against the City of Russellville, Ky. and others for a mandatory order reinstating plaintiff to position from which he had been discharged. Judgment for defendants, and plaintiff appeals.

Reversed.

J Granville Clark, of Russellville, for appellant.

James C. Lyne, of Russellville, for appellees.

THOMAS Justice.

The City Board of Councilmen of Russellville, Kentucky, on July 2, 1946, appointed the appellant as a night policeman for the city for a period ending December 31, 1947. The appointment was made to fill a vacancy produced by the resignation of a former policeman whose term expired on the last date above mentioned.

On April 21, 1947, the same board unanimously passed a resolution dismissing appellant from the service on the stated ground that he 'has been guilty of insubordination and conduct unbecoming an officer, and his services as a policeman are unsatisfactory, and the same constitutes cause for his removal as such.' No notice for such contemplated action on the part of the board, or of any specific complaint of appellant's conduct, as a basis for the preferred charges against him in that resolution, was given to him and it was passed without knowledge on his part that the board contemplated doing so.

On May 13, 1947, appellant filed this action in the Logan circuit court against the city, its mayor, the members of the board of councilmen and other officers of the city, by which he sought a mandatory order reinstating him to the position from which he had been discharged, on the ground that no legal cause existed therefor, and the board of councilmen failed to give him reasonable notice of its intention to dismiss him so that he might appear and be heard. The court sustained a demurrer to the petition, following which appellant filed an amended petition in which he alleged: 'That at the time of his appointment as night policeman of the City of Russellville, Kentucky, on the second (2d) day of July, 1946, he possessed all of the qualifications to be eligible to hold the office of night policeman in the City of Russellville, Kentucky, as prescribed in Section 132 of the ordinance as set out in the original petition which established the police department in the City of Russellville, Kentucky, and Section 95.710 of KRS.'

The court sustained a demurrer filed by defendants to the petition as so amended, followed by its dismissal and denying and overruling plaintiff's motion for a writ of mandamus upon his failing to plead further, and from that judgment he prosecutes this appeal.

Section 95.700, KRS, prescribes, inter alia, that 'the city legislative body in cities of the fourth and fifth classes may, by ordinance, establish a police department, appoint its members, and provide for their number, grades compensation and regulation.' It also fixes the term of the appointee to not exceed two years. The next section 95.710, with reference to the same classified cities, prescribes eligibility requirements to be possessed by the appointee, which are, that he 'must be a citizen of the state, a resident of the county for at least six months, at least twenty-four years of age, able to read and write the English language intelligibly, and sober, moral and sagacious.'

The ordinance establishing the Police Department of the City of Russellville, in its section 132 says:

'No person shall be eligible as a policeman who is not at the time of his appointment a citizen of the State of Kentucky, a resident of the City for at least six months, at least 24 years of age, or who is not moral, sober and sagacious, or who has been convicted of a felony, or who cannot read and write the English language intelligently, or who shall, after his election or while a member of the police force, interfere in an election further than to vote.'

Both the statute relating to cities of the fourth class, as well as the ordinance of the city of Russellville, prescribed that no removal of the appointee shall be made without cause which, of course, means, as has been said many times by this court, to be a legal cause. The only difference between the ordinance and the applicable statute with reference to qualifications is that the statute says that the appointee must be a resident of the county, while the ordinance says that he must be a resident of the city.

Counsel for the city in support of the judgment appealed from presents only two grounds therefor, where he contends require its affirmance. They are, (1) because the appointment of appellant as night policeman for the city of Russellville was not made by an ordinance which counsel insists was necessary to make the appointment valid under the provisions of section 95.700, supra; and (2) because plaintiff did not properly allege his eligibility under the terms of section, 95.710 KRS to become a policeman which counsel insists was necessary in order to entitle plaintiff to be reinstated to the position from which he was dismissed.

Ground (1) is based upon counsel's interpretation of this language in KRS 95.700 saying that the classified cities therein 'may, by ordinance, (and not by motion as he contends) establish a police department, appoint its members,' etc. (Our parenthesis). The ordinance required by the statute was one establishing a police department, after which the council should 'appoint its members' and there is nothing in the ordinance intimating that the appointment of its officers, under the power conferred by the statute, should also be by an ordinance. That interpretation, if it needed support, may be found in the cases of Craft, ...