State ex rel. Wolcott v. Boyington , 1920 Wash. LEXIS 568 ( 1920 )

Parker, J.

This was a certiorari proceeding in the superior court for Spokane county, wherein relator sought review and reversal of a decision of the civil service commission of the city of Spokane dismissing him from his position as a fireman in the fire department of that city, which position he held as a civil service employee. A hearing in the superior court upon the record of the hearing had before the civil service commission, resulted in a judgment of that court dismissing the proceedings with prejudice, leaving the decision of the civil service commission undisturbed. Prom this disposition of the cause in the superior court, relator has appealed to this court.

Counsel for relator, contending that he was unlawfully dismissed from the service of the city, invoke the civil service provisions of the city charter found in § 55 thereof, reading as follows:

“Any employee may be suspended by the head of the department under which he is employed and thereupon his salary shall cease. The officer making the order shall forthwith file with the civil service commission a statement of the suspension and the reasons therefor. Within ten days after his suspension the employee so suspended may file an appeal with the civil service commission, who shall hold an inquiry within ten days after the filing of the appeal and shall make decision within ten days after the hearing, whether the employee shall be dismissed or reinstated in his employment. All such hearings shall be public. The decision of the commission shall be final.”

There is no other provision of the charter limiting the power of the civil service commission, or the head of the department in which relator was employed, touching the dismissal of appellant from the service of the city.

On April 18, 1918, the city’s commissioner of public safety, he being the head of the department in which relator was employed, made an order in writing, filing the same with the civil service commission, suspending relator from the service of the city, which order reads as follows:

“It having been brought to the attention of the commissioner of public safety that O. M. Wolcott, employed as a fireman in the fire department, has been guilty of conduct in violation of the rules of the department and detrimental to the public service; and it appearing to the said commissioner of public safety, after a full and impartial investigation of said matter, that the said O. M. Wolcott, on or about the 17th day of April, A. D. 1918, and at divers other times prior to said date, at fire station No. 5 and elsewhere, and during the time he was engaged in active duty under his said employment, did prepare and write a petition to the commissioner of public safety, requesting and demanding that the said commissioner of public safety discharge from his position, as chief of the fire department, A. L. Weeks, said discharge to become effective not later than May 1st, 1918. That said Wolcott circulated said petition for signatures among his fellow members of the fire department, and solicited signatures from firemen to the same, and urged them to join him in making such demand upon the commissioner of public safety.

“And it further appearing to the said commissioner of public safety that said conduct was in violation of the rules of the department and detrimental to the public service, and that for the reasons above stated the said O. M. Wolcott should be discharged from his said employment, with loss of salary, subject to an appeal to the civil service commission:

“Now, Therefore, by reason of the premises, it is hereby ordered that the said 0. M. Wolcott be, and he is hereby, suspended from his said employment; that Ms salary cease from tMs date, and that unless he appeals from this order to said commission, witMn ten days from the date hereof, the reason for his suspension herein stated may be taken as confessed by said commission, and his absolute discharge by it ordered. ’ ’

Thereafter, in due time, relator filed his appeal with the civil service commission, seeMng reinstatement. Thereafter, on April 30, 1918, a hearing was had before the civil service commission, whereat evidence was introduced in support and in rebuttal of the charges so made against relator, he being present and afforded ample opportunity to be heard. That hearing resulted in the decision by the civil service commission here in question, which was sustained by the superior court by dismissal of the certiorari proceeding, which judgment of the superior court is in turn here for review upon the appeal of relator.

The contentions here made in behalf of appellant, in their last analysis, amount to little else than that the civil service commission wrongly decided the case against appellant upon the merits, and that the superior court should, for- that reason, have reversed the decision of the civil service commission. That is, that the evidence taken before the civil service commission failed to sustain its decision, and that the cause assigned for appellant’s suspension and dismissal was in no event, even if proven, such as to warrant his dismissal from the service of the city. Now, while the subject of the dismissal of civil service employees under a charter provision of the nature here in question is, in a limited sense, a matter of judicial cognizance in the courts, the inquiry which the courts are permitted to make relative thereto can, in no event, extend to the merits, generally speaking, of a case heard and decided by the civil service commission. The reason is that the employee would' not, upon his dismissal, have any right of redress whatever except for the charter provisions, which give him the right to be heard before the tribunal created by the charter. Manifestly, had the charter given to the head of the department in which appellant was employed unrestrained authority to hire and discharge employees in that department, the courts would, under no circumstances, have jurisdiction to entertain any phase of the question of appellant’s dismissal from, or retention in, the service of the city. The city, by its charter, can create a tribunal with power to finally decide the question of whether or not a city employee shall be dismissed from, or retained in, the service of the city. Now this is what the city of Spokane, by its charter provisions above quoted, has done. It has not only given to the civil service commission the power to decide questions of fact, that is, as to what acts have been committed by an employee which are sought to be shown as grounds for his dismissal, but also the question as to whether or not the particular acts drawn in question constitute sufficient cause for the dismissal of an employee. It is to be noted that the charter provisions above quoted only require that the order of suspension shall state the “reasons therefor.” Nothing is specified in the charter as to what are, or what are not, sufficient reasons for the suspension of an employee by the head of the department, or for his final dismissal by the civil service commission. It would seem, therefore, that the question as to what acts are, and what are not, sufficient to warrant the dismissal of an employee is a question to be decided by the civil service commission, just as the question of whether or not such cause exists in fact is to be decided bv the civil service commission.

It may be that the hearing accorded an employee by the civil service commission in a particular case might be so unfair in the circumscribing of the employee’s opportunity to be heard, or in some other respect, as to conclusively show such arbitrary and capricious action on the part of the civil service commission as to call for the conclusion that its members did not exercise their judgment at all, and thus warrant interference by the courts, preventing the putting into force of the decision of the civil service commission so rendered; but we are quite convinced this is not such a case. Appellant was awarded full opportunity to be heard, and evidence was heard tending, at least in some measure, to prove the charges made against him as the cause of his suspension and dismissal. This, we think, is, in any event, as far as the courts may inquire into the questions of fact involved. We also think that the cause of appellant’s suspension and removal upon which the decision of the commission was rested, was not so frivolous as to warrant the court in holding that the commission did not exercise its honest judgment when it decided the cause to be sufficient. It is not for the courts to say what cause is or is not sufficient to support a dismissal by the civil service commission, unless possibly the cause assigned be so frivolous that all minds must necessarily agree that it is not a legitimate cause.

Price v. Seattle, 39 Wash. 376, 81 Pac. 847, seems decisive of the case before us. That involved charter provisions similar to the ones here in question. Judge Rudkin, speaking for the court therein, made the following, among other, observations:

“In- the absence of restraints imposed by the constitution or by statute, the power of appointment implies the power of removal, where no definite term is attached to the office or employment by law. People ex rel. Griffin v. Lathrop, 142 N. Y. 113, 36 N. E. 805; Easson v. Seattle, 32 Wash. 405, 73 Pac. 496.

“In adopting the civil service system for the purpose of securing, and retaining in its employ, competent servants, we are of the opinion that the people of Seattle deemed it wise to impose no restrictions upon the power of removal, except a requirement that the reasons shall be stated in writing, and an investigation allowed by an impartial board of its own creation. In adopting a charter it was competent for the city to adopt the first rule above stated, which admits of a removal at pleasure and without cause, or the second, which only admits of a removal after a hearing and upon cause shown. In our opinion the city adopted a course midway between the two. It doubtless considered the requirement that the reasons for the removal should be stated in writing and made a matter of record a sufficient safeguard against improper removals, and an investigation by the civil service commission a sufficient protection to the discharged employee. Whether such provisions are wise or unwise is not for the consideration of this court. Where,the system extends to a large number of employees, the right of every discharged employee to resort to the courts would doubtless impair, in a measure, the usefulness and efficiency of the system itself. In any event, we do not think that the framers of the charter ever intended that the court should be resorted to in such cases. When, therefore, the appointing' power files with the civil service commission a statement in writing showing good and sufficient reasons for the removal, and after investigation the commission confirms the action of the appointing power, the removal is complete, and any further appeal must be to public opinion. Kimball v. Olmsted, 20 Wash. 629, 56 Pac. 377; State ex rel. Gill v. Byrne, 31 Wash. 213, 71 Pac. 746.”

In State ex rel. Criswell v. Board of Trustees of Firemen’s Relief Pension Fund, 93 Wash. 468, 161 Pac. 361, this same view of the law was adhered to. That case involved a decision rendered by the firemen’s pension board, wbicb was vested with power to hear and decide applications for relief from tbe firemen’s relief fund; Tbe law under wbicb tbe question arose being Rem. Code, § 8073, Subd. 4, making tbe decision of tbe board final. Tbe question of whether or not tbe decision of tbe board was final in tbe sense that it was not reviewable by tbe courts, being presented, Judge Fullerton, speaking for tbe court, said:

“Tbe conclusiveness of tbe order of tbe board of pensions is urged in this court. Tbe contention we think must be sustained. It is within tbe power of tbe legislature, when enacting a statute creating a new right with its remedy, to vest in some board or person power to adjudicate all matters arising under tbe statute, and to make such adjudication final and conclusive.

“Tbe further claim that the right to tbe relief demanded is a vested right and thus subject to a determination by tbe courts is also without foundation. Whether tbe right was vested is subject to inquiry, and since tbe legislature has vested tbe board of pensions with full power and authority to determine tbe inquiry, its conclusion on tbe question is as final as it is on any other matter of which it is granted complete jurisdiction. ’ ’

Counsel for appellant seem to rely principally upon our decision in State ex rel. Powell v. Fassett, 69 Wash. 555, 125 Pac. 963. It is plain that tbe question there presented was reviewable in tbe courts because it was sought to discharge an employee without a statement of any cause therefor whatsoever. No question of merits was involved at all, but it was a question of whether or not tbe employee had been discharged for cause. That case is a good example of tbe nature of" tbe inquiry courts are permitted to make touching such cases. Stated generally, we think it may safely be said that tbe subject of inquiry by tbe courts touching such cases is not whether they have been decided rightly or wrongly by the special tribunal created by law to decide them, but whether or not the city authorities, including the special tribunal, have proceeded in the manner prescribed by law, in this case the city’s charter.

We are quite convinced that the judgment of the superior court must be affirmed. It is so ordered.

Holcomb, C. J., Mitchell, Mackintosh, and Main, JJ., concur.