The Portland daily press., 1886-01-15

Haskell, yesterday morning.
The account as stated in the writ is as
follows
City of Portland to Benjamin +. AndreOs, DIR.
July For salary as City Marshal for
quarter ended June 80, 1884, at $780, -o o
october For same for quarter ended 1000
Ja Septi Issb-For same for quarter ''0O
'S ended Dec' II iss22 3'.,io $500
" Ian D1r to Mar g. ............. 237.e3
P24.3I 9e'','o ~. 279e
s1,24o.59
June 16-Interest on said sums from
dates when they seyerally fell due to
date of writ. 44.oZ
81 285.21
In opening the case to the jury Judge
Goddard referred to the provisions of the
original charter of the city of Portland,
which was enacted in 1882, in which it was
provided that one of the officers of the city
should be City Marshal, whose important
duty it was to act as the head of the police
department of the city, and to see to the
execution of the laws. Judge Goddard stated
how, for many years, the office OF City Mar
shall had been filled at the pleasure OF the
Mayor, and then gave a brief history OF SUD-
sequent legislation relating to the appoiht-
ment of such officers, and history Oh tlis
case from the removal of Mr.. Andrews from
office by Mayor King and the Board OF Mayor
and Aldermen, to the time of his reappoint-
ment by Mayor Deering, and the reluSal Oh
the city government to allow MS claim lot
salary during the time he was deprived OF
the office, and claimed that the city owed the
debt and that it should be paid, otherwise
Marshal Andrews would not receive a cent
of remuneration for the time that he was
Illegally deprived of the office.
Counsel for the plaintiff then read in evil
dence the legislative enactments of 1877 and
1878. relating to the appointment of City
Marshal; Chap. 1893 of the public laws Of
1880. relating to the trial of causes involving
the rights of parties to hold public offices,
and the act of 1885 relating to the appoint
ment of members of the police force Of the
city of Portland and also from the amended
acts of 1868, the amended charter of the city
of Portland, special reference being made to
Sec. 6.
Mr.. George c. Burgess, City Clerk, was
then called and sworn, and produced the
records of the Board of Mayor and Alder
men, and read the records of the board of
March %, 1883, relative to the appointment
of Mr.. Andrews; the record Of the oath of
office taken by him; the record of the APP
proval of his official bond; the record of a
special meeting of the Board of Mayor and
Aldermen of May 10, 1883, at which meeting
the salary of the City Marshal was fixed at
$500 per year; the record of special meet
ing of the board ON March %, 1884, at which
the resignation of Mr.. Joseph D. Decelle as
City Marshal was presented and accepted,
and Benjamin F. Andrews was appointed to
fill the vacancy, and the record of Mr.. An
drews' official bond and of the oath of office
taken by him.
On cr0ss-examination counsel for the city
offered in evidence the record of the special
meeting of the. Board of Mayor and Alder
men, held April "a, 1884, for the purpose of
considering the charges preferred against the
City Marshal but this was excluded at this
stage of the case, as also were the records of
subsequent meetings relating to the hearing
upon the charges, and the removal of Mr..
Andrews. Witness testified that Mr.. Joseph
D. Decelle was acting as City Marshal from
May 10, 1884, to March %, 1885, and testified
that upon the latter date Marshal Andrews
took the oath of Office the second time, and
Immediately entered upon the discharge of
his duties
At this point court adjourned until after
noon.
AFTERNOON SESSION.
At the coming in of the court in the after
noon, Mr.. Burgess was recalled by the plain
tiff. Judge Goddard then read in evidence
the petition of Mr.. Andrews to the City
Council, asking for the payment of his Sala-
ry as Marshal, and the City Clerk then read
the records of the Board relating to the same.
The plaintiff stopped here, and Judge Sy-
monde fhef1 rna6a tho onnr1jnU cfatarnQuf for
the defence. He claimed that. with
the exception of about $187 due to
the plaintiff as salary during period for
which no payments were made to Mr. De-
whatever attached to the city; that the act
of the Board of Mayor and Aldermen in re-
moving Mr.. Andrews from office was judi
cial act in the character of court or public
tribunal, and was not done by them as the
agents or officers of the city, That there
had been prejudiced, and that, inaSmuch as
the order of the Mayor and Aldermen pre-
vented his discharging the duties of his Office
it was necessary for the interests of the city
to appoint another officer and to pay him;
that they had the right to do so without sub
jecting themselves to the danger of paying
the salary of the City Marshal twice. That a
municipality or county have the right to pay
the actual incumbent of an office, who is in
possession and performing the duties of the
A@NAA
to the office is in dispute, without subjecting
themselves to pay the salary again to per-
son who may finally recover, in litigation re-
lating to that office; and that, in any event,
for the period during which Mr.. Decelle held
the Office, there should, at least be deducted
from the falary for that period the amount
of wages earned by the plaintiff in other oc-
equations In this connection, Judge Sy
monds stated that the defence were prepared
In that dnrinO tho time for which Mr.
Andrews claims to recover salary from the
city, he had earned nearly five hundred dol
lars in another employment.
Mr.. Burgess, the City Clerk, was then call
record of the special meeting of the Board of
Mayor and Aldermen of April "a, 1884, call
ed for the purpose of considering the charges
which had been preferred against Marshal
Andrews, and also the records of the subse-
quent meetings of the board at which the
hearings were had, and as to the removal of
Mr.. Andrews on April 80, 1884. Witness also
read the record of the appointment of Mr..
Decelle as City Marshal on the 18th of May
following, and the record of his qualifca-
ton.
Counsel for defense then read in evidence
two certificates of the City Auditor. one
showing payments made to Mr.. Andrews
and the other showing payments made to Mr.
Decelle. The defence also read In evidence
under objection, a certificate from Mr.. John
w. Dana, treasurer of the Portland and Og
densburg Railroad Company, showing pay
ments to Mr.. Andrews by that company in
the months of June, July, August, Septem-
Der, October, November and December, 1884,
and January, February and March, 1885, of
the sum of 1886 for his personal services.
Joseph d. Decelle was then called by the
defense, and produced the original notice is
sued to him of his appointment sas Marshal,
and also certificate of his oath of office. Mr..
Decelle then testified as to the circumstances
of his taking possession of the Office of City
Marshal, his testimony being the same as
given before.
On cross-examination, Mr.. Decelle said
that he claimed to have been Marshal but
once, holding the Office continuously, al
though he had received a second appoint
ment on the 9th of March, 1885. That ON
the 9TH of March, Mayor King handed to
him certificate of his second appointment,
which he was now unable to produce, as it
had been lost; that he had made diligent
search, but was unable to find it. He could
not recall the language of it, but in substance
it stated that he had been appointed City
Marshal of the City of Portland, and was
authorized to perform the duties ofithe office.
Mr. Decelle stated that at the time of his APP
pointment he owned no horse and carriage,
but provided himself with one to enable him
to attend to his duties. He had no personal