Chambers v. City of Sunnyvale

NOURSE, P. J.

Plaintiff appeals from a judgment by the court sitting without a jury denying him the right of recovery of the salary of a police officer against the city of Sunnyvale or the members of the city council.

In April, 1931, plaintiff was appointed a policeman at a salary of $135 per month by resolution of the city council upon the request for an extra man by the chief of police. Plaintiff was warned several times about intoxication but was never .officially dismissed by resolution of the council. In April, 1938, he became extremely ill with cirrhosis of the liver, stopped work and has never performed any police duties since. In May, 1938, one Yglesias was appointed police officer and thereupon commenced and still continues to carry on the duties of that office in plaintiff’s stead. Since April, 1938, plaintiff has not filed any claim for salary, which claim, prior to that time, he had filed at the end of each month. He has never presented himself for duty and has accepted private work at various times. This suit was brought for

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salary accruing from. May 1, 1938, to March 31, 1940, and for salary accruing subsequently, up to the time of the trial.

The appellant bases his original appointment on section 852 of the Municipal Corporations Act, Deering’s Gen. Laws, Act 5233. The respondent does not agree, and cites other provisions of the act relating specially to police officers. In the light more favorable to appellant we may assume that section 852 is controlling. As amended in 1927, the section applicable at the time of appellant’s appointment provided that: “The board of trustees [now the city council] shall appoint the marshal and the recorder; they may also, in their discretion, appoint an attorney . . . and such other subordinate officers as in their judgment may be deemed necessary, and fix their compensation. Said officers shall hold office during the pleasure of said board. ’ ’ The same section authorized the board of trustees to designate the number of deputies to be appointed by the respective officers, and such deputies were to “hold office subject to the pleasure of the board of trustees and of their respective principals.” (Stats. 1927, pp. 427, 428.)

The trial court found that because of failure to follow the procedure outlined in the statute the city council had not made a valid appointment of the plaintiff, that he was a “de facto” officer only from the date of his appointment in 1931 to the 1st day of May, 1938, when he resigned from said office by abandoning the same; that on the latter date the city council appointed another police officer in the place and stead of plaintiff, and that said person has ever since performed the duties theretofore performed by plaintiff and received the salary therefor, and that since that date the plaintiff had known that another had been appointed in his place and had received the salary attached to such office. It was found that for each and every month during the period from April 6, 1931, to April 30, 1938, plaintiff had filed with the city clerk his claim in writing for the salary for the preceding month; that after May 1, 1938, plaintiff made no claim to any salary or to the right to exercise the duties of a police officer until April 15, 1940, when a claim for the full salary from May 1, 1938, was filed. The circumstances supporting the finding that plaintiff had abandoned the position were found to be “that on said 30th day of April, 1938, the plaintiff was taken ill with a sickness caused by his excessive drinking of alcholie liquor, that since said last mentioned