Beverly v. City of Hattiesburg ( 1903 )

Calhoo.N, J.,

delivered the opinion of the court.

Beverly sued the city for “services rendered on police force” from January 14 to February 28, 1903, and got judgment in the court of a justice of the peace for the amount of his claim, and the city appealed to the circuit court, which peremptorily instructed the jury to find for the city.

Appellant had served the city as policeman for about seven years, going in originally under commission, and then holding over from term to term, and being paid up to January 14, 1903, when the municipal council elected a new set of policemen, and the old set, Beverly included, were informed that they would not be paid any longer. Mr. Beverly testified that he was “sworn in” -by the mayor January 14, 1903, but not pursuant to any reappointment or any election by the board. One of his claims is that he was appointed January 14, 1903, by the mayor, by being sworn in under an ordinance of January 6, 1897, authorizing the mayor “to remove and appoint a night policeman,” but it is clear that appellant was not in the category empowering the mayor to appoint him, even if the power could be validly' given, so as to bind the municipal board, which we do not decide. But the court excluded this ordinance, and also an ordinance of February 5, 1901, empowering the mayor to appoint one day policeman and one night policeman. We will not notice, however, the various rulings of the court, as, at last, it decided the controversy from a view of the whole case, and our consideration of the case will be as if all the evidence had been received which plaintiff sought to introdutíe.

Appellant Beverly was paid his salary as policeman,' monthly for years, up to and including January 14, 1903, when, as we have said, the municipal board elected a new set. Another ordinance was offered hy plaintiff, of date January Y, 1903, that “no employe elected hy the hoard” should he discharged by it except on “written charges,” but this cannot he of any avail, because appellant was not so elected. It was also shown that Beverly made some arrests, and collected and paid over some fines, between January 14 and February 28, 1903, but this gives him no claim for salary if he was out of office. The peremptory instruction to find for the city was right. Appellant Beverly could not claim as an officer holding over after the expiration of his office, because his successor had been chosen. He could not be, of his own motion, a policeman in perpetuity. He could not claim for services rendered dehors the office, because they were rendered in invitum and without any authorization.

Affirmed.