The record-union., 1896-10-04
HARLOW Wins His suit.
mas Not an Officer and Did Not Come
Under Section 81.
Besides. By Paying Him Three Months
Salary, the Trustees Practically
Confirmed Him.

Judge Hinkson yesterday decided the
appeal of Substitute officer j. M. Har-
low, who was appointed by the Mayor
during the suspension of Anthony
Greene and whom the Trustees refused
TO pay after they rejected his appoint
nfent as a regular officer by Mayor Hub
bard in place of w. p Rutherford.
The decision, which states the case
Very clearly, is concurred in by Judges
Satlin and Johnson, and is as follows:
In the Superior Court, County Of Sac
ramentO, State of California.
J. M. Harlow, plaintiff, VS.. The City
of Sacramento, defendant.
This action was brought in the Justice
Court of Sacramento Township to re-
cover Judgment against the defendant
for the sum of $50, alleged to be owing
and due from the defendant to the
plaintiff for his salary as a temporary
policeman of the city of Sacramento for
the month Of June, 1896, and an appeal
was taken from the judgment of that
court to this court
It appears from the evidence adduced
at the trial that in the month of Feb
ruary, 1896, Anthony Greene was re-
duced in rank from Captain of Police to
the position of a regular policeman and
was suspended from the police force for
the period of six months, and that i'm
mediately thereafter the Mayor ap-
pointed the plaintiff to temporarily take
the place Of officer Greene, and that i'm
mediately thereafter the plaintiff en-
tered upon his duties and received from
and acted under the instructions of the
Chief of Police and from thence up to
the time of the commencement of this
action continued to act in that capacity,
during which time there had been no
regular or other appointment made OF
amy person to take the place of Officer
Greene. That the plaintiff did not be-
fore he was SO appointed by the Mayor,
nor at any other time, present to the
Mayor any physicians certificate certi-
flying that he was of sound health and
free from any disability that would in
capacitate him for the duties of a po-
hceman, nor did he comply with any Of
the prerequisites provided in the char
ter required Of regular policemen before
their appointment by the Mayor.
That on the last Monday of each OF
the months of March, April and May,
1896 the plaintiff caused to be regularly
presented to the Board Of Trustees for
approval and allowance claims for his
salary as SUCH temporary policeman al
the rate of 500 per month, the amount Oh
the monthly salary of the regular po-
Hcernen.
That the Board Of Trustees passed
upon, allowed and ordered the same
paid.
That on the last Monday in June
1896, the plaintiff presented his claim
for $50 for his salary as such temporary
policeman for that month to the Board
of Trustees for their approval and al
1owance, and the Board Of Trustees re-
jected and refused to allow and to order
the same paid, whereupon this action
was commenced.
That during the month of May 1896
Policeman Rutherford was removed
and discharged from his position as po-
Hceman, which removal and discharge
created a vacancy in the police force.
TO fill such vacancy the Mayor ap-
pointed or nominated the plaintiff and
reported the appointment or nomina-
ton to the Board of Trustees. and there
upon the Board Of Trustees rejected the
appointment or nomination, and re-
fused to confirm the same, and the
plaintiff continued TO act as temporary
policeman, vice Greene, suspended.
On the last Monday in May. 1896
the Board of Trustees passed the fol
lowing resolution, viz: Resolved, By
the Board Of Trustees Of the city Of
Sacramento, that after the 1st day OF
June, 1896, no person whose name has
been sent to this board by the Mayor
as an appointee for any Office or posi-
aion for confirmation, and said appoint
ment Of such person having been, or is
rejected by the board, shall receive any
pay OF draw any salary from the city
treasury for the services he may per
form in said office by reason Of hi:
temporarily filling the position through
appointment by the Mayor, or by any
other officer Of the CITY,"
A copy Of which resolution wa'
served on the plaintiff 1t is contendet
by the defendant:
F'irst-That the plaintiff was ineli
gible to the position because he failed
TO comply with the provisions Of Sec1oi
l2S Of Article TX Of the charter, which
provides, among other things, that be
fore a man can be appointed police
ran he must present 70 the Mayor ;
physicians certificate certifying that h
is in sound health and free from an.
physical disability that would incapaci
tate him for the duties Of the office
and that therefore he was not an Off
Ger. but was merely an employe, ant
that consequently the Mayor had M
right or authority to retain him in tn
employment.
Second-That the Mayor has no au
fhority to retain in office or employ
ment any person without the sanction
or confirmation Of the Board Of Trus
tees, and that the retention by him 0
the plaintiff in the position was al
usurpation Of authority, and
Third-That the retention of tn
plaintiff in the position by the Mayo
was in violation of the said resolution
adopted by the Board Of Trustees, an
was therefore in excess Of his authorit
and was void.
The case was tried before Judg
IIinkson. and as there was no confiic
ln the evidence, and the sole question
presented by the pleadings and the evi
ience being one of law, at his request
Judges johnson and Catlin join IN rem
dering the decision.