Obrázky stránek

(37 Okla. 125, 130 Pac. 546.)

recommend that no horses shall be
fed or kept with the city's teams at
the city's expense. We recom-
mend that these changes take place
on January 1st, 1908.

R. H. Clayton, Chairman.
J. W. Wayne, W. T. Love,

Mayor. "Report of ways and means committee which was appointed by the mayor at the last council meeting to investigate the various departments of the city in regard to curtailing the expenses as much as possible was read. Motion by Lain, seconded by Wayne, that the report be adopted. Report was adopted. Thereupon the following action was had: 'Motion by Clayton, seconded by Wayne, that the mayor and chief of police carry out the recommendation of the ways and means committee report. Motion carried.'

"Third. That thereupon and in compliance with said report and its adoption as aforesaid, and the motion giving the mayor and chief power to carry out said report, the mayor and chief of police removed several of the police officers of the city of Shawnee, among which was the above-named plaintiff, said removal to begin on and from the morning of the 1st day of January, 1908, and has not since acted as assistant chief.

"Fourth. That said plaintiff has ever since been ready and willing to perform the said duties, provided he was allowed to do so, and that he tendered his services to the chief of police of the city of Shawnee."

This statement shows that the office of assistant chief of police was in effect abolished, at least temporarily, because of lack of revenues to pay the officer. It was not a removal from office because of misconduct or inefficiency. The office was not one the existence of which was necessary to maintain the city government. It was an inferior, appointive office, and not an organic part of the city. Nothing is better settled than that an office may be abolished unless something in the statute or Constitution forbids, or,

in the case of a municipality, something in the statute and Constitution; and when an office is abolished, the incumbent at the time of its abolition has no claim to further

compensation, even Officer-insuffithough he may have cient revenuebeen appointed for discontinuance a term which had

of office.

not yet expired. The right to an
office is not the right of the incum-
bent to the place, but the right of
the people to the officer. Lloyd v.
Smith, 176 Pa. 213, 35 Atl. 199.
Supporting the general proposition,
see Oldham v. Birmingham, 102 Ala.
357, 14 So. 793; Ford v. State Har-
bor Comrs. 81 Cal. 19, 22 Pac. 278;
Re Bulger, 45 Cal. 553; Koch v. New
York, 152 N. Y. 72, 46 N. E. 170;
Re Porter, 24 Misc. 434, 53 N. Y.
Supp. 683; Lloyd v. Smith, 176 Pa.
213, 35 Atl. 199; Com. ex rel.
Braughler v. Weir, 165 Pa. 284, 30
Atl. 835; State ex rel. Woodsides
v. McDaniel, 19 S. C. 114. The rule
has been applied to officers of a mu-
nicipality in the following cases:
Augusta v. Sweeney, 44 Ga. 463, 9
Am. Rep. 172; Phillips v. New York,
88 N. Y. 245; Boylan v. Police
Comrs. 58 N. J. L. 133, 32 Atl. 78;
Meissner v. Boyle, 20 Utah, 316, 58
Pac. 1110; Heath v. Salt Lake City,
16 Utah, 374, 52 Pac. 602; State ex
rel. Goodnow v. Police Comrs. 80
Mo. App. 206, affirmed in 184 Mo.
109, 71 S. W. 215, 88 S. W. 27; Re
Lazenby, 76 App. Div. 171, 78 N.
Y. Supp. 302; Venable v. Police
Comrs. 40 Or. 458, 67 Pac. 203;
Moores v. State, 54 Neb. 486, 74 N.
W. 823. In the following cases it
was held that, where the office was
abolished, the provisions of law re-
quiring that the officer should have
a hearing before discharge did not
apply: Oldham v. Birmingham, 102
Ala. 357, 14 So. 793; Phillips v. New
York, 88 N. Y. 245; Boylan v. Police
Comrs. 58 N. J. L. 133, 32 Atl. 78;
Heath v. Salt Lake City, 16 Utah,
374, 52 Pac. 602; Neumeyer v.
Krakel, 110 Ky. 624, 62 S. W. 518;
State ex rel. Goodnow v. Police
Comrs. 80 Mo. App. 206; Re Laz-
enby, 76 App. Div. 171, 78 N. Y.

Supp. 302; Venable v. Police Comrs. 40 Or. 458, 67 Pac. 203. In Moores v. State, 54 Neb. 486, 74 N. W. 823, it was held that, before a member of the police department should be discharged for alleged misconduct, unfitness, dereliction of duty, or other causes affecting his character or standing as a public servant, charges must be filed against him, and he must have an opportunity to be heard, and that the right of an officer of the police force to defend himself against formal charges is a right to vindicate himself from an unjust accusation, and not a right to show that the public welfare requires his retention in the public service, or that the revenues at the disposal of the board are adequate for the payment of his salary. That

-vested right.

there is no vested interest or right in an office is well settled. See Taylor v. Beckham, 178 U. S. 548, 44 L. ed. 1187, 20 Sup. Ct. Rep. 890, 1009; Butler v. Pennsylvania, 10 How. 402, 13 L. ed. 472; Crenshaw v.

United States, 134 U. S. 99, 33 L. ed. 825, 10 Sup. Ct. Rep. 431.

In this case the plaintiff was not removed to make way for another to be appointed. Because of the lack of revenues his position was discontinued, as were the services of several other members of the police force. The force was cut down.

The judgment should be reversed and here rendered in favor of the plaintiff in error, the city of Shaw


Per Curiam:
Adopted in whole.


It is held in the reported case (SHAWNEE V. HEWETT, ante, 195) that a city may discontinue an office which is not an organic part of it. The general subject of the power to abolish or discontinue office is the subject of the annotation beginning at p. 205, post.



CITY OF SEATTLE et al., Appts.

Washington Supreme Court (Dept. No. 1) - June 28, 1913.

(74 Wash. 199, 133 Pac. 11.)

Civil service - right to combine duties so as to depose officer.

1. The civil service system does not prevent the combining by ordinance, for the purported purpose of economy, of the duties of an officer on the classified list with those of another officer, so as to leave the former with no duties to perform and necessitate his being dropped from the service. [See note on this question beginning on page 205.]

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

(74 Wash. 199, 133 Pac. 11.)

one officer, is not shown by the fact that the officer upon whom the duties were imposed is not able to keep up

with the work, and was given no increase in salary.

[See 19 R. C. L. 936.]

APPEAL by respondent from a judgment of the Superior Court for King County in favor of relator in a mandamus proceeding to compel respondent to reinstate and place relator in the position of detail clerk in charge of index and real estate record work in the office of the city comptroller. Reversed.

The facts are stated in the opinion of the court. Messrs. James E. Bradford and William B. Allison, for appellants:

The motives of a city council in passing an ordinance, in the exercise of its legislative power, cannot be inquired into for the purpose of determining its validity, except as they may be disclosed on the face of the acts, or inferable from their operation and effect, and the interests of persons in them have no bearing upon such intent.

Lilly v. Indianapolis, 149 Ind. 648, 49 N. E. 887; People v. Gardner, 143 Mich. 104, 106 N. W. 541; Dreyfus v. Lonergan, 73 Mo. App. 336; Paine v. Boston, 124 Mass. 486; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730.

A municipal corporation has power to abolish an office during the term of an incumbent by a repeal of the ordinance creating it, and to create a similar office and provide for the immediate election of an officer to fill it; and such power is not affected by a provision in the former ordinance that the incumbent should be removable for cause.

Donaghy v. Macy, 167 Mass. 178, 45 N. E. 87.

The intent of the city council in abolishing an office cannot be reviewed by the courts.

Downey v. State, 160 Ind. 578, 67 N. E. 450.

Mandamus will not lie to compel a city officer to pay a salary to an employee.

Fitzsimmons v. O'Neill, 214 Ill. 494, 73 N. E. 797.

The court will not compel the city to bear the expense of maintaining relator in his position when there is no work for him, or to remove some employee to make a vacancy for the relator.

People ex rel. Chappel v. Lindenthal, 173 N. Y. 524, 66 N. E. 407.

When the action of the city council is authorized by law, and the council

acts within the limits of the discretion conferred upon it by such law, a court of equity will not sit in review of its proceedings and enjoin its actions.

State ex rel. News Pub. Co. v. Milligan, 3 Wash. 144, 28 Pac. 369.

The right to hold a municipal office as between two contestants therefor cannot be litigated in an equitable action seeking injunctive relief.

Mullen v. Tacoma, 16 Wash. 82, 47 Pac. 215.

The motives of the council in passing an ordinance cannot be inquired into by the courts.

Shepard v. Seattle, 59 Wash. 363, 40 L.R.A. (N.S.) 647, 109 Pac. 1067.

Messrs. Preston & Thorgrimson and Mr. Sandford C. Rose, for respondent:

A civil service position consists of the duties or work of the position, and not at all of a mere name, and to change the name does not abolish the position.

Gilmur v. Seattle, 69 Wash. 289, 124 Pac. 919; Chicago v. Luthardt, 191 Ill. 516, 61 N. E. 410; Malone v. Williams, 118 Tenn. 391, 121 Am. St. Rep. 1002, 103 S. W. 798; State ex rel. Ingram v. Street & Water Comrs. 63 N. J. L. 542, 43 Atl. 445.

The local authorities have no power to discharge an officer or employee of the city upon the pretense that his office is abolished, and immediately thereafter assign another person to do the same work which has been done by the discharged employee.

2 Dill. Mun. Corp. § 479; Silvey v. Boyle, 20 Utah, 205, 57 Pac. 880; Womsley v. Jersey City, 61 N. J. L. 499, 39 Atl. 710.

Mandamus does, in general, lie to restore a party to an office from which he has been illegally removed or suspended.

26 Cyc. 260; Com. ex rel. O'Brien v. Gibbons, 196 Pa. 97, 46 Atl. 313; Thompson v. Troup, 74 Conn. 121, 49 Atl. 907; State, McCarter, Prosecutor, v. Newark, 52 N. J. L. 341, 19 Atl. 782; State ex rel. Guion v. Miles, 210

Mo. 127, 109 S. W. 595; State ex rel. Moyer v. Baldwin, 77 Ohio St. 532, 19 L.R.A. (N.S.) 49, 83 N. E. 907, 12 Ann. Cas. 10; Pratt v. Police & Fire Comrs. 15 Utah, 1, 49 Pac. 747.

A civil service employee has the right to recover his wages while wrongfully deprived of his position.

Foster v. Hindley, 72 Wash. 657, 131 Pac. 197; Bringgold v. Spokane, 27 Wash. 202, 67 Pac. 612; United States v. Wickersham, 201 U. S. 390, 50 L. ed. 798, 26 Sup. Ct. Rep. 469; Warden v. Bayfield County, 87 Wis. 181, 58 N. W. 248; McCue v. Wapello County, 56 Iowa, 698, 41 Am. Rep. 134, 10 N. W. 248.

Chadwick, J., delivered the opinion of the court:

The trial judge filed a memorandum decision in this case. He found


the facts to be as follows: "In May, 1911, there occurred a vacancy in the office of the city comptroller for the place of real estate clerk, a position recognized by classification under the civil service system. emergency having arisen, relator Voris was appointed by the comptroller pending civil service regulations. In June, upon investigation by the secretary of the commission of the duties required for the position of real estate clerk, it was classified as that of abstracter and real estate clerk, and the comptroller notified that an original examination must be held for the position. Relator in November, having successfully passed the examination, received the regular appointment of file and real estate clerk, which seems to be another designation of abstracter and real estate clerk. On April 30, 1912, the city council, by ordinance 29,343, ordained that the position of file and real estate clerk in the department of city comptroller be abolished, and on the same day the comptroller reported to the commission the separation of Voris from his department, alleging the cause to be on account of the reduction of force. On May 6, 1912, the council, by ordinance 29,380, established the salary of detail clerk in charge of index and real estate record work at

$100 per month. Thereupon the commission notified the comptroller that, inasmuch as a separate classification had been provided for this position, the work should be done by none except those regularly qualified for the same. The comptroller, ignoring the communication, notified the commission June 7th that he had given the increase of salary made by ordinance 29,380 to P. E. Farren as detail clerk. On June 29th Voris appealed for investigation by the commission of the reasons for his dismissal. Such investigation was had, and on September 26, 1912, the commission found Voris entitled to the office held by Farren and recommended that he be returned to the position as the employee rightfully entitled to the same. The comptroller having refused to comply with the recommendation of the commission, relator Voris has brought this action." It may be inferred from this statement that the position occupied by the relator was the only position abolished by the council. This is not true. The ordinance of which he complains abolished several positions, and the new ordinance seems to have been designed to combine their several duties with that of others. From these facts the court concluded that the office in which the relator had been employed had been abolished in name only, and that the relator was entitled to reinstatement, with his salary from the time of his separation from the office.

The question put by the trial judge is, Was the office abolished? It is not denied that the city council has the power to abolish a position, but it was the opinion of the court below and is the opinion of counsel for the relator that the council could not declare an office abolished unless "in fact the duties themselves were abolished." "The testimony before the court clearly established the existence of the duties as formerly, but their transference to another clerk. Owing to varying changes of conditions the duties at

(74 Wash. 199, 133 Pac. 11.)

times have been more or less numerous than formerly, but there is no dispute of the fact that the same duties of the alleged abolished position remain to be performed and still continue to occupy another clerk from one half to two thirds of all his time." We think the court has gone further than the law warrants. The council has the right to create offices and it may abolish them, or it may, in the interest of economy and efficiency, combine the work of several employees so that their duties will be thereafter performed by a lesser number of men. In this case the city council has done no more than this. It abolished the position of "file and real estate clerk" and by another ordinance provided that the work formerly done by that employee should be done by "a detail clerk in charge of index and real estate record work in clerk's division." The testimony, and most of it is, in our opinion, irrelevant, shows that Farren, the present employee and a civil service man, is doing a part of his old work as well as the work formerly done by Voris. Relator undertook to show that he was not keeping up with his work. That is a matter with which courts have nothing to do. So long as he is performing either in whole or in part the work that he formerly did, his right to remain in the office of the comptroller is greater than is the right of the relator to be reinstated. An employee cannot be removed to make way for one who is in the same legal position. In other words, the work formerly done by Voris being combined with that formerly done by Farren, neither the civil service commission nor the courts have power to say that a present employee shall give way to one who insists upon the right to perform a part only of the present duties of the existing position. In the instant case the object of the ordinance was to work a reduction of the force. We are informed by counsel on oral argument that there was an actual reduction, under the ordinance com

plained of, of five men. We may as-
sume that this could only be done
by combining the work previously
done by the greater number, and
this the council had a lawful right
to do under its gen-
eral powers, as de-
fined in §§ 18, 19,

Officer-power to transfer duties.



and 41, art. 4, of the charter. Much
of the brief of the respondent is
taken up with a discussion that goes
to the good faith of the city coun-
cil in abolishing this office. Courts
will not inquire in-
to the motives of inquiry as to
the legislative body. motives of
If the ordinance or
law is fair upon its face and does no
violence to any provision of the city
charter or the Constitution, it will
be upheld. This ordinance is fair
upon its face. It suggests nothing
unless it be a purpose to work econ-
omy. If the rule were otherwise, it
would be impossible for the govern-
ing body of a city to change, rear-
range, or redefine the duties of its
employees so long as any one of
them had been classified by the civil
service commission and had a scin-
tilla of work to perform.

The case of Fitsimmons v. O'Neill, 214 Ill. 494, 73 N. E. 797, is a valuable authority in that it deals with a case similar to the one at bar and reviews many authorities. A foreman in the city repair shop was laid off for the reason that no appropriation had been made to meet his salary. He demanded reinstatement, contending that the duties of his position had not been abolished, and could not be abolished, as it was essential to the proper management of the repair department that there should be a superintendent. It was further made to appear that the duties which had been performed by him were performed by others; that those who had been doing the work were not superintendents; that one of them was a wagonmaker and the other a laborer. Relator insists that the work of real estate clerk must be done by an abstracter, and that Farren was never qualified as such. The case is a stronger one than is

« PředchozíPokračovat »