The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1886-01-16

strong and able plea in behalf OF the plain
tiff
JUDGE HAsKELL's CHARGE.
After explaining to the jury the respective
duties devolving upon the court and the jury
in the trial of civil causes, His Honor
charged as follows:
Now, gentlemen, with these remarks, /
come to the present case. The plaintiff has
summoned the inhabitants of the city of
Portland to answer to his suit wherein he
demands his salary as city marshal of the
city of Portland from April /, 1884, to March
81, 1885, with the exception of sixteen DAYS
in the month of March. The plaintiff, by
his writ, AYERS that the defendant city
promised to pay him that salary at the rate
Of $500 per annum. The defendants, by
their plea, say that they did not promise to
pay it. The burden is upon the plaintiff to
prove such facts as will satisfy the jury Of
the liability of the defendants, and upon all
the evidence in the case produced by the
plaintiff and the defense, taken together, you
are to determine whether.or not the plaintiff
has proved to your satisfaction by pre-
ponderance of evidence those issues which it
is incumbent upon him to prove. Ii he fails
to prove any issue by .preponderance OF
evidence, then he fails in his case, If the
issue is one which the court has instructed
you that it is incumbent upon him to estab-
liSh. If the evidence is equipoiSed, so that
it predominates neither the one way nor the
other, then the party having the burden Of
proof, fails. But if it preponderates by a
feathers's weight the plaintiff, having the
burden of proving the fact, has established
it
Let me say, gentlemen, that you are not
expected to arrive at abstract truth. Re
member that you are to judge and determine
according to the law and the evidence
given you, and it is by weighing that evi-
dence that you are to determine whether the
issues upon the one side or upon the other
have been proved, as they are required to be
proved to you under the instructions of the
presiding justice
The plaintiff has read in evidence docu-
ments showing that on the oath of March,
1885, he was appointed to the office OF
marshal of the city of Portland. BY act OF
the Legislature, approved March 4, 1885,, 1t
is provided that 'the city marshal shall be
appointed by and hold office during the
pleasure of the mayor" So that, on the 25th
day of March, the incumbent of the office
having resigned, it appears by the records
Mr.. Andrews was appointed marshal by the
Mayor of the city, and that he qualified by
filing an appropriate bond and taking the
requisite oath of Office.
There has been read in evidence, as you
will remember, record OF the city, showing
the salary of the city marshal to have been
fixed at $500 per annum. understand it Is
not disputed by the defense that the salary
of the city marshal from March 23d to April
1st is still due to Mr.. Andrews as city
marshal during that period, and unpaid.
do not understand that there is any contro-
yersy in regard to that item in the account;
If there is, counsel will correct me. do not
understand that it is controverted that the
plaintiffs salary for that period amounted
to 7.96, nor that it is disputed that the
first formal demand for the payment of that
salary by the marshal was made on the Sth
of May following.
So, gentlemen, you will be authorized to
find, in this case, in the first place verdict
for the plaintiff for the sum of S27.96, with
interest upon the same from the date when
the demand was made As | have stated, l
do not understand that it is cOntroyerted by
either party that that demand was made
May 8th. While it is claimed that interest
follows from the time when it became paya-
BILE, yet, do not take that view of the law,
and instruct you that interest will only run
from the time when the demand was made.
So that the plaintiff Is entitled to recover In
this action the sum of $2796, this being the
salary of the Marshal during that period,
with interest from May Sth.
The plaintiff has read in evidence records
showing his appointment as City Marshal
prior to April l, 1884, and he has testified,
and it is not controverted here, that prior to
that time he exercised and performed the du-
ties of the Office of City Marshal. But the
plaintiff AYERS in his writ that his salary from
April /, 1884, to March IA, 1885, inclusive, re-
mains unpaid to him, and he claims that he
has performed the duties of the Office for a
certain portion of that period, and that he
has been ready to perform, and has offered
to perform the duties of the office, and has
held himself in readiness so to do during
that entire time, and that he has not been
paid for his services during that period. L
do not know that it is pretended that he has
been paid. do not know that it is disputed
that he has performed the duties OF Marshal
that is, until May Is, 1884. l do not know
that it is disputed that he has been ready
and willing, and has offered to perform the
duties of that Office from that period until
March 9th, of the following year. With this
view of the case, the plaintiff stops,
why the plaintiff is not entitled to recover
his salary as Marshal during that period.
By the act of 1878 it is provided that the
Marshal shall continue in office during good
behavior; subject, however, after hearing, to
removal at any time by the Mayor, by and
with the consent of the Aldermen, for, in
efficiency or other cause. l do not know that
it is disputed that the plaintiff originally
held the office of City Marshal under that
act with a tenure secured according to its
provisions so long as it remained in force,
and the act did remain in force longer than
the time for which the plaintiff sues for
salary claimed to be withheld, excepting the
small sum of $27.96, of which | have already
spoken. So the defendant has read in evil
dence the records of the Board of Mayor
and Aldermen to the purport that the Mayor,
with the consent of the Aldermen, on given
day removed Marshal Andrews from the
office of City Marshal, and notified him OF
his removal. | do not know that it is
controverted that thereafterwards the Board
OF Mayor and Aldermen prevented Mr.. An
drews from further performing his duties as
City Marshal of the city from that time to
March 9th following.
The defense has also read in evidence
records tending to prove an appointment OF
m n liz - kl,N, d.. he
records showing that he was duly qualified
that he filed his official bond for the faithful
performance of his duties, concerning which
no question has been made here. The de-
fenSe says that Mr.. Decelle entered upon his
duties as City Marshal on the 10Th of May,
and that he continued to perform those duties
up to March 9Th following. The defense
claims that as Mr.. Andrews was removed
from the Office by the Mayor and Aldermen,
and as Mr.. Decelle was appointed on May
18th, and entered upon and performed the
duties of the office from that time forward,
the duties of City Marshal, and as the as as
bursting officer of the city paid MI. Deceiie
his salary for the time he so actually serVeyu,
the plaintiff is not entitled to recover Ior tiie
same.
Now. gentlemen, it has been demonstrated
that the appointment of Mr.. Decelle was ir-
regular and invalid, and that the removal OF
Marshal Andrews was irregular ana invalid,
and being irregular ltWoula NO. a, noI lTSgaIy IN
tlemen. is true. But it appears that under
that appointment Mr.. Decelle claims to have
entered upon and performed the duties of the
office. 1t is claimed by both the plaintiff and
the defense that the salary for that year had
been fixed by the proper authorities at the
rate of $500 per annum, and it is claimed by
the defense that the entire salary was paid tC
Marshal Decelle for his services from Marcel
10th to the 9Th of the following March, and
consequently, the city is relieved from the
payment of the same, and cannot be held il
this suit to pay the same to the city marsha
who was by law rightfully entitled to the:of
flee. Well, gentlemen, municipalities are
creatures of statute Towns and cities are
incorporated for public benefit and public
good, and they are governed by law, by the
general law of the land, and by legislation
which applies to them, and it appears that
1890 had been appropriated by the council Of