Mayor of Vicksburg v. Rainwater ( 1876 )

Chalmers, J.,

delivered the opinion of the court.

Appellee was appointed by the mayor, and confirmed by the-board of aldermen, of Vicksburg one of the policemen of said city, at a salary of $100 per month. There was no term, of employment or appointment specified.. At the end of one month the city marshal discharged, or assumed to discharge, him.

Being advised by the mayor that the marshal had no authority to discharge him, appellee continued to offer his services as policeman during three months longer, at the end of which period the board of mayor and aldermen ratified the act of' the marshal.

Appellee having received payment only for the month which he actually served, instituted suit for the balance of the time-which he continued to offer his services, to wit, up to the time-when the board of mayor and aldermen approved the act of the marshal, the same being three months and seven days. By the written agreement of counsel it was conceded that, if appellee-was entitled to receive anything, he was entitled to $323.53, and for this amount he had judgment.

By the amended charter of the city of Vicksburg it is provided that ‘ ‘ the board of aldermen may provide by ordinance for a competent police force for said city, who shall be under the superintendence of the city marshal. They should be appointed by the mayor, by and with the advice and counsel of said board.” Nothing is said about their removal. Acts-of 1870, p. 364.

If the policemen are to be regarded as city office holders it. is manifest that the marshal cannot remove them. If they are to be regarded as mere employés, working under a contract, it seems equally clear that there is no power in that. officer to put au end to a contract made for tbe city by its chief executive, with the advice and consent of its legislative assembly. The police force are “under the superintendence of the marshal,” but this merely constitutes him their overseer, with no power to deprive the city of their services. In the absence of any law or ordinance on the subject, their contract can only be terminated by the same power that made them.

We are asked to review the case because appellee had judgment for the full amount of his salary, without deduction of any amount that he realized, or might have realized, by other employment during the time he was tendering, and the marshal was refusing to accept, his services.

The judgment ivas for the amount that the city attorney agreed that it should be if appellee was entitled to maintain his action. If the city has been damnified thereby, it is through the fault of her attorney, and not. by any error in the verdict or judgment.

Judgment affirmed.