State ex rel. Dresskell v. City of Miami
| Decision Date | 01 June 1943 |
| Parties | STATE ex rel. DRESSKELL v. CITY OF MIAMI et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; Paul D. Barns Judge.
Jack Moore, of Miami, for appellant.
J. W Watson, Jr., William W. Charles, and Frank Parson, all of Miami, for appellees.
K. W. Dresskell was employed as a parking meter collector and repairman in the Department of Public Safety of the City of Miami. The salary for the position is fixed by the City Manager and appropriated by municipal ordinance. The duties of the employment are performed under the supervision and control of the City Manager and the Director of Public Safety. The position is required to be filled from an eligibility list prepared by the Civil Service Board of Miami, as a result of competitive examination. When appointed, such employee becomes a member of the classified civil service, under the civil servive law pertaining to the City of Miami. Thereafter, such employee is entitled to retain such position until discharged, reduced, promoted, or transferred in accordance with the provisions of the civil service law.
Dresskell was discharged. He appealed to the Civil Service Board of Miami for reinstatement. The Board reviewed the matter and found that his removal was not in conformance with law and that he should be restored to his position with pay from the date of discharge to the date of his restoration to service.
Several months had elapsed between the date of discharge and the final findings of the Board. During part of that time Dresskell had been employed elsewhere by a private employer, on a full-time basis. The monthly salary that he had received in private employment was greater than the amount that he had been receiving monthly from the City.
Dresskell brought mandamus to require the City to reinstate him and to allow him back salary, in pursuance of the findings of the Civil Service Board. The City answered admitting his right to reinstatement and the recovery of back salary, but insisting that his earnings from private labor should be applied upon and deducted from it. Dresskell moved for a peremptory writ the return notwithstanding. Upon hearing, the trial court entered its judgment that the writ do issue, but found that the amount of back salary otherwise recoverable should be reduced by the amount earned by Dresskell in private employment. Dresskell appealed from the judgment. The question is whether the City is entitled to offset the amounts earned by the appellant during the period of his illegal discharge, in this action brought by him to recover back salary.
The appellant claims that as his tenure of employment under civil service is fixed by law and not by contract, and may not be disturbed except in strict accordance with applicable provisions of the civil service law, his right to the salary for the period follows as an incident to the employment. In other words appellant submits that to his position should be applied the familiar rule of law pertaining to public officers which recognizes that if one is lawfully entitled to a public office his right to salary attaches to the office and may be recovered in full, irrespective of any service rendered and without regard to the fact that he may have earned money elsewhere in private employment.
We do not think that this contention is well-founded. There can be no dispute that by the great weight of authority, the rule contended for by the appellant is applicable to holders of public office. Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787, 55 Am.Rep. 835; McQuillin, Municipal Corporations Revised, Vol. 2, § 539, p. 319, 37 Am.Jur. § 258, p. 883; Annotation: 53 A.L.R. 924. But so far as we have been advised by a perusal of the authorities on the subject, no court has ever allowed recovery in a case like the one before us now, except upon a finding, as a predicate for recovery, that the aggrieved person in the particular case was an 'officer' as distinguished from 'an employee'. Such was the finding made in City of Fort Smith v. Quinn, 174 Ark. 863, 296 S.W. 722, 53 A.L.R. 921, so confidently relied upon by the appellant; and of all other authorities cited in the Quinn case in support of the conclusion reached by the Arkansas court.
There is a distinction between an officer and an employee. The term 'office' implies a delegation of a...
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