Gorley v. City of Louisville

55 S.W. 886, 108 Ky. 789, 1900 Ky. LEXIS 14

• Court: Court of Appeals of Kentucky
• Decided: March 17, 1900
• Status: Published

Opinion

Opinion of the court by

CHIEF JUSTICE HAZELRIGG

Rever sins.

When appellant Gorley claiming that his attempted removal from office by the Board of Safety, was illegal and void, sued the appellee city, for his salary, the city among other things pleaded the Special sis months statute of limitation in bar of recovery.

It also pleaded certain facts which were supposed t-> authorize the removal. The circuit court held that the removal was illegal, but upheld the plea of the statute.

On appeal this court held also that the removal was illegal, but declared the special statute unconstitutional, and reversed the judgment. (20 Ky. Law Rep., 602). We said further in that opinion, that the demurrer to the petition ought to have been sustained on the ground that Gorley was not entitled to bring his action for salary until he first established his right and title to the office by a suit against the person, the de facto officer, who had been put in his place. This was based on the theory that another person had been put in appellant’s stead. Had the demurrer been sustained on this ground, the pleader might have amended his petition, and in the light of subsequent events would have done so, and had his case considered on its merits. If it was not true that some one had been put in the office in place of appellant, then the doctrine announced had no application, as there was no one against whom such a suit could be brought. This we understnad is the rule adopted in the authorities cited in the former opinion. On the return of the ease it has been made to appear, that there is no one holding appellant’s place against whom he might bring his action, and he must therefore, be permitted to sue the city or be remediless. It does not follow however, that one so situated may remain passive as appellant did for about one year, and Oven earn money from other sources, and then sue for his accumulated salary. He must assert his right to the office and his salary promptly, to the end that upon his restoration to the office, if that should follow a favorable decision, he may perform the duties for which he is to be paid, or the city take such steps as she may legally do to avoid further loss. This is but common justice to the city. Upon being refused his salary appellant ought then to have brought this action. We think he has demonstrated his right to so much of the salary as would likely accrue pending a prompt judicial settlement of his rights in the premises, and he ought to have no more. The city authorities presumably would have restored him or have taken the proper steps to remove him.

The judgment dismissing his petition is reversed for proceedings consistent with this opinion.