City of Jacksonville v. Williams, 238 Ark. 519

Sam Robinson, Associate Justice. 0. Loren Hudson and Ben G-. Williams originally filed this suit against the City of Jacksonville contending that some time prior to February 15, .1958, they were employed as deputy marshals for the City of Jacksonville; that on February 15, 1958 they were wrongfully and illegally discharged by the Mayor of the city. Later, Ben G. Williams died, and the suit in his behalf was carried on by the administratrix of his estate.

It is alleged'that Hudson and Williams were entitled to be paid at the rate of $275.00 per month for the balance of the year 1958, and prayed for a judgment accordingly. The cause was tried in April, 1963; there were judgments in favor of the plaintiffs; the defendant, the City of Jacksonville, has appealed. Ark. Stat. Ann § 19-1104 (Repl.-1956) provides that the city marshal shall have power to appoint one or more deputies.

It is stipulated that one Garner, who was the marshal of Jacksonville, appointed Hudson and Williams for the year 1958, and on February 15, 1958, the Mayor of the City of Jacksonville discharged Garner, the marshal, and the deputy marshals. One Kennedy took over the duties of marshal. Garner filed suit against Kennedy alleging that he had usurped the office of marshal There was a judgment in the circuit court to' the effect that Garner was entitled to the office. Kennedy appealed to this court.

We held that without the approval of the City Council the Mayor did not have the authority to discharge the marshal, and that Garner was, therefore, entitled to the office. Kennedy v. Garner, 230 Ark. 698, 326 S. W. 2d 810. It is now contended that Hudson and Williams had been appointed for the entire year by Garner, and that the Mayor had no authority to discharge them; that they were entitled to their salaries from the 'city for that part of the year in which they had no other employment, notwithstanding the fact that subsequent to February 15, 1958 they did no work for the city.

The City Council fixed the deputy marshals’ salaries at $275.00 per month, but the Council had the right to withhold the payment of such salaries when the employees did not work, and evidently did withhold such salaries, otherwise no suit would have0 been filed. The statute provides that the marshal may appoint deputies, ánd it was held in Conner v. Burnett, 216 Ark. 559, 226 S.

W. 2d 984 that cities are authorized to pay salaries to deputy marshals, but there is no statute requiring the city to pay salaries to deputy marshals, and although there is a city ordinance fixing the salaries of the deputies, the deputies have no cause of action against the city for salaries where they have done no work to earn such salaries. Although the deputies may have been discharged by someone exceeding his authority, the fact is that they did no further work for the city, and in these circumstan'ces they were only entitled to the fees as set out in Ark. Stat.

Ann. § 19-1104 (Repl. 1956) which provides that deputy marshals ‘£ shall receive the like fees as sheriff and constable in similar cases”. In State ex rel Rusch v. Board of County Commissioners of Yellowstone County, 191 P. 2d 670, the court said: “. . . The status of deputies necessitate the holding that such subordinates are not ‘public officers’ who may receive the compensation prescribed for their services merely by virtue of their appointment without regard to whether they render service in the position or not.” Reversed and dismissed. MoFaddin & Johnson, J.J., dissent.