Luellen v. City of Aberdeen ( 1944 )

In his amended complaint in this action, plaintiff, after alleging that the city of Aberdeen is a municipal corporation, that defendants Horrocks and Dean are, respectively, mayor and chief of police of the city, and that other defendants are members of the city civil service commission, and defendant Lindberg city comptroller, alleged that during the year 1932 the city enacted ordinance No. 3613, bringing the members of its police and fire departments within civil service regulations made effective by the ordinance referred to. Certain provisions of the ordinance which are hereinbelow set forth were pleaded, and it was further alleged that plaintiff, E.O. Luellen, had for more than ten years prior to the institution of the action been a member of the city police department, and that June 21, 1938, he was promoted to the position of captain of police; that at about the same time he became sick, and was granted leave of absence.

The complaint then alleged that October 3, 1938, defendant Dean, the chief of police, attempted to separate plaintiff from the police force, and mailed to plaintiff a letter reading as follows:

"Mr. Omer E. Luellen "Box 797 "Palm Springs, California.

"Dear Sir:

"Please be advised that I, as chief of the police department of the city of Aberdeen, have on this date ordered your removal as a member of the police department of the city of Aberdeen.

"This action is taken for the reason that your conduct in the past has been such as to bring discredit to the department and unbecoming to a police officer. This action has been taken only after thoroughly investigation your past conduct, and for the good of the department. There is nothing for me to do but to order your removal.

"I am today certifying to the civil service board a statement in writing giving my reasons for your removal. Under the law you have your right of appeal to the civil service board, as provided by the civil service ordinance of the city.

"Yours very truly, "GEO. S. DEAN "Chief of Police, "City of Aberdeen"

Plaintiff further alleged that the chief of police as such had no authority to order the separation of plaintiff from his position as a member of the police force, that the act of the chief was illegal and void, and that plaintiff remained a member of the police force, absent on sick leave, notwithstanding the action of the chief of police above referred to.

Plaintiff further alleged that he had been refused any salary by the city, and

". . . that at the time of his attempted separation from his office, as aforesaid, plaintiff duly protested to the civil service commission against the action of defendant Dean, but his protest has at all times been ignored."

Plaintiff further pleaded the existence of the police pension fund; that he was incapacitated for further police duty, and was entitled to retire as a police officer at a certain monthly stipend. Plaintiff prayed for judgment declaring that his purported separation from the service was illegal and void; that he was entitled to the status of a member of the police department of city; and that he was eligible to retirement.

To this complaint the defendants demurred, upon the grounds that the court had no jurisdiction of the person of the defendants or the subject matter of the action; that the plaintiff had no legal capacity to sue; that several causes of action were improperly united; that the action had not been commenced within the time limited by law; and that the complaint failed to state sufficient facts to constitute a cause of action. It seems to be agreed that this demurrer was by the trial court overruled, with leave to reargue the same when the case was called for trial. Accordingly, when the case was called, and after an opening statement by counsel for plaintiff, defendants' counsel reargued their demurrer to the complaint, which the court considered as amplified by the opening statement of plaintiff's counsel. After argument, the trial court sustained defendants' demurrer upon two grounds: First, that it appeared from the record that plaintiff had been guilty of laches and unreasonable delay in prosecuting the action; and, second, that the complaint, as amplified by the opening statement of plaintiff's counsel, failed to state facts sufficient to constitute a cause of action.

Plaintiff having elected to stand upon his complaint, and declining to plead further, judgment was entered dismissing the action, from which plaintiff has appealed.

The proceedings before the trial court at the time the action was called for trial, including the opening statement of appellant's counsel, have been made a part of the record by a regularly certified statement of facts.

The question presented is a very narrow one. Appellant contends that he has never been discharged from the police force of respondent city, because his attempted discharge by the chief of police was and is illegal and void, and that he is still a member of the force and entitled to retirement as a police officer.

As a portion of the colloquy between court and counsel for the respective parties, which is disclosed by the statement of facts, a copy of the ordinance of the city of Aberdeen, referred to by appellant in his complaint, was considered, and, as stated in the majority opinion, made a part of the record by consent. The pertinent portions of this ordinance read as follows:

"Sec. 8. REMOVALS. Every officer or employee in the classified civil service shall hold office until removed or retired. Any officer or employee in such service may be removed by the appointing officer only upon the filing with the Commission of a statement in writing of the reasons therefor. Any officer or employee so removed may within five (5) days after his removal demand an investigation. The Commission shall forthwith make such investigation and its findings and decision shall be certified to the appointing officer and if the removal is not sustained thereby, the officer or employee so removed shall at once be reinstated. . . ."

"Sec. 14. PENALTY. Any person in the service of the city under civil service rules who shall wilfully or through culpable negligence violate any of the provisions of this ordinance, and who shall be convicted thereof after trial before the Civil Service Commission, shall be dismissed from the service of the city and not be subject to reappointment."

"Sec. 15. CERTAIN EMPLOYEES TO BE BROUGHT UNDER CIVIL SERVICE RULES. The present members, employees and officers of the police department and of the fire department of the city, are hereby deemed qualified to enter the civil service and shall come under civil service rules upon taking a physical examination by the health officer and filing with the Commission a certificate of good health. . . ."

"Sec. 36. CAUSES FOR REMOVAL. SEPARATIONS. The following are declared to be causes for removal or discharge of an officer or employee from the classified civil service of the city, although removals may be based upon causes other than those enumerated, namely: . . .

"(13) Conduct unbecoming an officer or employee of the city."

It is admitted that appellant was a member of the police force of the city, entitled to the benefits and protection of the ordinance. As disclosed by the statement of facts and his opening statement, appellant's counsel stated that

". . . the record will show that the reasons that Dean filed with the civil service commission recited not only the one contained in the letter, which he sent to Luellen, but three or four other reasons of which Luellen never had any notice whatever."

Continuing his statement, appellant's counsel said:

"Then the record will show that the civil service commission went over those reasons assigned by the chief, but in the meantime, or not long after Luellen received this letter down at Palm Springs, California he wrote to the civil service commission protesting his removal. Mrs. Luellen also addressed a letter to the civil service commission protesting the removal of Mr. Luellen. Then the civil service, the record will show that they considered these reasons that Dean filed with them. Among them was several, — three or four reasons that were given in section 36 as causes for removal, but Dean in his letter to Luellen gave this one reason. Then the record will show that the civil service commission considered these reasons, made some sort of investigation and wrote a letter to Luellen saying that, — this chairman wrote a letter to Luellen saying that we have this day, — we have examined these reasons given for your removal and we think the chief was justified in making the removal, and then they give another reason in addition to the ones that Dean had sent to them. So finally there were about five different reasons considered by the civil service commission for the removal of Luellen."

While it appears from the record that appellant brought several actions in an attempt to obtain a judgment directing that he be placed upon the pension roll, which actions were all decided against him, these matters are immaterial, in so far as the case at bar is concerned.

The first question to be decided is whether or not appellant was, by the action of the authorities, separated from the police force. If he was so separated from the service, he cannot prevail in this action, as his remedy was by proceeding to obtain a review before the civil service commission of the proceedings leading up to his dismissal. That remedy is exclusive, and the courts have no jurisdiction to review an order of dismissal such as that which operates against appellant, if the order had the effect of separating the subject thereof from the service. Such an order may be arbitrary, unjust, or ill-advised to a degree, but it is final unless reviewed by the proper authority, in this case the civil service commission, in the manner prescribed by law. If, then, it appears from appellant's complaint and opening statement that appellant was actually separated from the police force by the proceedings of which he complained, he may not prevail in this action, as he is not attempting to review by certiorari any order or ruling of the civil service commission. On the other hand, if from appellant's allegations it appears that the proceedings of which he complains were void as matter of law, as the majority hold they were, then he might well contend that he was entitled to judgment setting aside the order removing him from the police force.

Section 36 of the ordinance sets forth eighteen causes for removal or discharge of an officer or employee of the classified civil service, providing that the causes enumerated are not exclusive. By subparagraph (13), supra, "conduct unbecoming an officer of the city" is assigned as a cause for removal. By the letter from the chief of police to appellant, above quoted, appellant was advised that he was removed for the reason that his "conduct in the past has been such as to bring discredit to the department and unbecoming to a police officer." This statement substantially states the ground for removal set forth in the section of the ordinance referred to. Such a statement is sufficient.

By § 8 of the ordinance, supra, it is provided that any officer or employee under the civil service may be removed by the appointing officer only upon the filing with the civil service commission of a statement in writing of the reasons therefor. The section further provides that any person so removed may, within five days after removal, demand an investigation, whereupon the civil service commission shall forthwith make such investigation, and certify its findings to the appointing officer, etc.

The letter from the chief of police advised appellant that the chief was that day "certifying to the civil service board a statement in writing giving my reasons for your removal," and further advised appellant that he had the right of appeal to the board.

Appellant nowhere alleged that the chief did not file with the board the written statement referred to. On the contrary, in his opening statement appellant's counsel said that the commission "went over those reasons assigned by the chief."

In the chief's letter to appellant, the ground for appellant's removal was stated in substantially the language of the ordinance; that was a sufficient statement of the chief's reasons for removing appellant. It seems to me clear that appellant's removal was accomplished by the exact compliance with the provisions of the ordinance, and that appellant at that time ceased to be a member of the police force of the city of Aberdeen. His status as a police officer was absolutely terminated.

On this phase of the case, appellant apparently makes two contentions: First, that Chief Dean did not, as to appellant, occupy the relation of "the appointing officer" and for that reason had no authority to separate him from the service. Appellant bases this contention upon the fact that Chief Dean did not appoint appellant to the force, and that appellant received his civil service status pursuant to the ordinance upon its adoption in 1932. The term "appointing officer" manifestly refers to the officer possessing the power of appointing subordinates. Chief Dean occupied this position at the time of appellant's separation from the service, and possessed authority pursuant to the ordinance to act as he did.

Appellant then argues that he could be separated from the service only pursuant to § 14 of the ordinance, supra, after a formal trial before the civil service commission.

Section 14 is entitled "Penalty," and relates solely to wilful or culpably negligent violations of the ordinance. Section 36, above referred to, provides many causes for removal, many of which, such as "incompetency or inefficiency" (subparagraph 5), and "the contraction of some infectious disease or physical ailment or defect" which incapacitates the employee for the performance of his duties (subparagraph 14), could scarcely be considered as wilful violations of the ordinance. The same is true of subparagraph (13), supra, pursuant to which appellant was discharged. It seems to me clear that when appellant was brought within the purview of the civil service rules, as provided by § 15 of the ordinance, supra, he became subject to the entire ordinance, and was subject to removal pursuant to § 8 thereof.

By § 8 of the ordinance, it is provided that any employee removed by the appropriate appointing officer "may within five days after his removal demand an investigation," whereupon the commission shall forthwith make such investigation and certify its findings to the appointing officer. According to the terms of the ordinance, the removal of the officer or employee is fully accomplished when the appointing officer directs such removal and files with the commission the "statement in writing of the reasons therefor," above referred to. The person removed then is accorded the privilege of a review of this order before the commission. Of course, such review means a full, fair, and complete hearing. The person removed may appear before the commission in person and by counsel, witnesses may be called and sworn, and the findings of the commission and its decision shall be certified to the appointing officer. This hearing, however, is not necessary to the accomplishment of the removal of the employee. It simply affords him an opportunity to recover the position from which he had already been removed. In this connection, the record discloses the following state of facts, as appears from the statement of appellant's counsel, above quoted:

At the time of his removal, appellant was in California. Soon after the receipt of the letter from the chief of police discharging him from the service, appellant wrote to the civil service commission, protesting his removal. Appellant's wife also wrote to the commission, protesting appellant's removal. The commission then considered the reasons for appellant's removal filed with them by the chief of police, which included several other reasons than the one stated in the letter from the chief to appellant. The commission, as stated by appellant's counsel, "made some sort of investigation," and wrote appellant, advising him that the commission was of the opinion that appellant's removal was justified. It appears, then, that appellant did request a hearing before the commission, and that some sort of an investigation was made. We do not know what sort of a hearing appellant requested, or the nature of the investigation made by the commission. In any event, appellant took no steps to procure a further hearing, but apparently made an application to the board of police pension fund commissioners for a pension. He then, as stated in the majority opinion, instituted three proceedings before the superior court, in an endeavor to procure the status of a retired police officer. In all of these proceedings, he was unsuccessful, and the judgments or orders entered have become final.

When appellant was advised by the commission that the order of the chief of police dismissing him had been approved, several remedies were available to appellant. He could have, by certiorari, brought before the superior court for review the proceedings of the commission. If he had not been accorded the hearing which he had demanded, and to which he was entitled, he could have applied to the superior court for a writ of mandate requiring the commission to accord him such a hearing. Instead of taking some step to protect his rights, if any he had, he apparently acquiesced in the order of the commission, and, until the institution of this action in 1941, did nothing except attempt to be placed upon the retired list, thereby becoming the beneficiary of a pension.

This court has many times been called upon to consider the rights of municipal employees occupying a civil service status. In the early case of Price v. Seattle, 39 Wash. 376,81 P. 847, the city appealed from a judgment granting a writ of mandate requiring the city to reinstate the plaintiff as an employee. It appeared that the plaintiff had been removed by the appointing officer, who "thereupon filed with the civil service commission a statement in writing showing his reasons for the removal," as required by the city charter. The same steps were taken in appellant's case. The plaintiff in the case cited thereafter demanded an investigation by the civil service commission, which confirmed the action of the appointing officer in removing the plaintiff. Thereafter the plaintiff brought the action referred to, demanding a mandatory injunction directing his reinstatement. Plaintiff contended that he had been discharged because of his refusal to perform labor outside of the required hours. Inter alia, the appellant city contended that the plaintiff had been removed from his position in strict compliance with the charter, and that the court could not review the action of the appointing officer and the civil service commission in such a proceeding as the plaintiff had instituted. This court reversed the judgment of the trial court, with direction to dismiss the action, saying:

"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."

It seems to me that this case is directly in point here.

In the case of State ex rel. Wolcott v. Boyington, 110 Wash. 622,188 P. 777, this court reviewed and affirmed an order of the superior court dismissing a certiorari proceeding to review a decision of the civil service commission of Spokane. The relator contended that he had been unlawfully dismissed, and obtained a hearing before the civil service commission, at which evidence was introduced by all parties interested. As stated by this court, relator's contentions amounted in effect to no more than an argument that the civil service commission had erroneously decided against relator upon the merits, and that the superior court should have reversed the ruling of the commission. This court held that, under the charter of the city of Spokane, any

". . . 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 by the civil service commission."

The court intimated that, if a hearing were unfair or arbitrary, an order of the commission might be subject to judicial review. This court discussed and distinguished the case of State ex rel. Powell v. Fassett, 69 Wash. 555, 125 P. 963, a proceeding by way of quo warranto, which is cited in the majority opinion in the case at bar, saying concerning that case:

"It is plain that the question there presented was reviewable in the 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 the employee had been discharged for cause. That case is a good example of the nature of the inquiry courts are permitted to make touching such cases. Stated generally, we think it may safely be said that the subject of inquiry by the 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."

In the case of State ex rel. Beebe v. Seattle, 159 Wash. 392,293 P. 459, this court affirmed an order of the superior court dismissing a mandamus proceeding upon sustaining a demurrer to the application. The relator had sought a writ of mandate from the superior court requiring his reinstatement as an employee of the city. In affirming the order of the superior court, this court said:

"Under our repeated holdings therefore, under the provisions of the Seattle charter and other like charters which have been quoted at length in various decisions, the courts have no power to inquire into the cause or reason for the removal. As we have said, the charter and the rules of the civil service commission provide an orderly procedure by which a discharged employee of the city may have the cause of his dismissal investigated, and the courts have no power or authority to alter or amend this procedure. They cannot inquire into the justice of the employee's cause, nor inquire whether the grounds upon which the discharge is based are well founded, unless it be in an extreme case, of which this is not one. Their power is confined to the inquiry whether the officers empowered to make the discharge have in so doing acted within the prescribed rules."

The Beebe case was an original proceeding instituted in the superior court, not by way of certiorari to review acts of the civil service commission, but a proceeding in mandamus whereby the court was asked to reverse the order of the commission. This, in effect, is the proceeding in the case at bar.

In the case of State ex rel. Littau v. Seattle, 189 Wash. 64,63 P.2d 515, which was also a proceeding in mandamus, this court affirmed an order of the superior court dismissing an application whereby the relator sought to compel his reinstatement as a member of the police department of the city. In the course of the opinion, we said:

"The principle of law governing the situation is this: When, in a case of removal from office or position within the classified civil service, it appears that the appointing power has filed with the civil service commission a written statement of the reasons for the removal, upon charges that cannot be said to be utterly frivolous, and when it further appears that the commission has awarded the party charged a full opportunity to be heard, and that competent evidence has been produced tending, in some measure at least, to prove the charges made, the court may not inquire into the weight or sufficiency of the evidence. Its power is confined to the inquiry whether the officers entrusted with the authority to effect removals and discharges have acted within the prescribed rules."

I agree with the majority in its statement that a review by way of certiorari of the removal from the service of a civil service employee is not necessarily exclusive, but I am strongly of the opinion that, in an application for a writ of mandate, or in such an action as this, which as stated by the majority is in effect an application for a writ of mandate, the only question which the plaintiff may present is whether or not the order of discharge of which he complains is absolutely void on its face. If the person discharged is complaining only that he was removed for improper or insufficient reasons, or was not accorded the hearing to which he was entitled, and shows no ground which would support a holding as matter of law that his removal was void on its face, then he must proceed by certiorari and by that means review the acts of the appointing officer, or the civil service commission, or of both, by which he feels aggrieved. Of course, if the civil service commission has unlawfully refused to grant the person removed a hearing, the superior court may, in an application for a writ of mandate, direct that a hearing be granted.

In the case at bar, it seems to me clear that appellant was separated from the service of the city by the acts of the chief of police, which were within his authority and strictly in conformity with the charter provisions covering the matter of removals. It also seems plain that appellant did have a hearing before the commission. If he did have such a hearing, as he said he did, then to obtain relief he was required to review that hearing by way of a writ of certiorari. If appellant did not have a hearing before the civil service commission, he had a right to one and a remedy before the court. That remedy he is not pursuing in this action, which is a direct attack on the order of the chief of police removing appellant from the force. Upon the record before us, appellant is not entitled to prevail in such an action.

The trial court was of the opinion that appellant was also barred by laches, from maintaining this action. In my opinion, the complaint is not subject to demurrer upon this ground. Laches may be pleaded by answer, and the defense in this case should be so raised.

The complaint, supplemented by appellant's opening statement, however, for the reasons stated, fails to state facts sufficient to constitute a cause of action, or to entitle appellant to any relief, and the judgment appealed from should be affirmed.

SIMPSON, C.J., concurs with BEALS, J.