State Ex Rel. Butters v. Railroad & Warehouse Commission

¹ Reported in 296 N.W. 906. Mandamus to compel respondents, who constitute the railroad and warehouse commission, to reinstate relators in state employment. (Two cases are consolidated for this appeal. We shall state the facts in the Smith case, No. 32,705. Those in the companion case are so similar as to need no separate discussion either of law or fact.) The action partakes also of the nature of one for the ordinary judgment for money. The decision was for relator and ordered respondents to reinstate him. Also, it directed Judgment in his favor against respondents personally for damages to be measured by the compensation he was earning when discharged, a deduction to be made for his earnings in other employment thereafter.

Relator was first employed by the commission August 16 and removed November 1, 1937. He was employed again August 1 and removed December 31, 1938. The alternative writ issued January 19, 1939. The trial was had March 29, 1939. The decision was not filed until August 4, 1939.

Relief was granted in application of a provision in the second paragraph of the repealed veterans preference law. 3 Mason Minn. St. 1940 Supp. § 4368. It provides that "a refusal to allow the preference provided for * * * shall entitle such honorably discharged soldier, sailor or marine to a right of action * * * for damages, and also for a remedy for mandamus for righting the wrong."

1. After the trial, before decision and as of April 22, 1939, there became effective L. 1939, c. 441, creating the department of civil service, comprehensively regulating the civil service of the state, and in its § 38 expressly providing that § 4368 and related sections are "hereby superseded." This language, particularly in view of the peculiar provisions in the "prospective saving clause" of the preference law, 3 Mason Minn. St. 1940 Supp. § 4369-2, was as efficacious completely to annul the designated sections as words could be. No more so would have been the use of the word "repeal." City of Los Angeles v. Gurdane (9 Cir.) 59 F.2d 161; Bishop v. Bacon,130 Pa. Sup. 240, 196 A. 918.

2. What is the effect of the repeal upon rights asserted and relief granted under the superseded law? Appellants' contention is that repeal was complete and decisive. For relator, reliance is placed upon 2 Mason Minn. St. 1927, § 10930, which declares generally that the repeal of a statute shall not "affect any right accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the law repealed."

That mandate is controlling unless the later and repealing act manifests a contrary intention. For this case, we have not only the general saving clause of § 10930, but also the special one of the veterans preference law. 3 Mason Minn. St. 1940 Supp. § 4369-2. It declares that "no provision of any subsequent act * * * shall be construed as inconsistent herewith * * * unless and except only so far as expressly provided in such subsequent act that the provisions of said sections [of the veterans preference law] * * * shall not be applicable or shall be superseded, modified, amended, or repealed."

The framers of the state civil service act seemingly had in mind that specific saving clause. First by § 38, they ordained that the preference law should be "hereby superseded." That is not all. They declared also and as explicitly as possible that substitution of the new law for the old should be effective notwithstanding the specific saving clause of that law. They did so by saying that the substitution should take place in spite of "anything in the 1938 Supplement to Mason's Minnesota Statutes of 1927, section 4369-2, to the contrary notwithstanding." As already appears, § 4369-2 is the saving clause of the preference law. So the state civil service act declares, as plainly as language may, that it shall prevail in the field of veterans' preference, in spite of the specific saving clause of the preference law. All the more plainly, then, must it prevail as against the general saving clause of § 10930.

3. The result is that the remedy of mandamus under the veterans preference law was taken away. State ex rel. Kane v. Stassen, 208 Minn. 523, 294 N.W. 647. That remedy was statutory. It was not saved by the civil service law. Hence, when the decision under review was made, it was not available to relator. (In fairness to the trial judge, it should be said that State ex rel. Kane v. Stassen was decided after his decision.)

4. It is immaterial that action was commenced and trial had before repeal. Relator's remedy under the former statute was not yet perfected by final judgment. In that incomplete status, it was equally subject to destruction by repeal of the statute without which it was lifeless. Bailey v. Mason, 4 Minn. 430 (546); Crawford, Statutory Construction, §§ 316-318; 1 Lewis' Sutherland, Statutory Construction (2 ed.) § 283.

5. By similar reason, that part of the order directing judgment against respondents for relator's wages lost by reason of his discharge was error. His right to recover depended upon the preference law. That law was repealed before relator acquired any vested right to damages under it. Under no possible construction can there be found an expression of legislative intention that his inchoate right should survive. So his action must stop where the repeal finds it. Troy v. City of St. Paul, 155 Minn. 391, 193 N.W. 726, and cases cited; People ex rel. Eitel v. Lindheimer, 371 Ill. 367,21 N.E.2d 318, 124 A.L.R. 1472; Pittsley v. David, 298 Mass. 552,11 N.E.2d 461; Penziner v. West American Finance Co. 10 Cal. 2d 160,74 P.2d 252.

The decision below inadvertently ignored the fact that respondent Matson was not a member of the railroad and warehouse commission at the time of the alleged wrongful discharge. He had no agency, official or otherwise, in that discharge. In no view of the case could he have been liable in damages.

The two orders under review must be reversed. Relator's rights under the veterans preference law are gone. He was deprived of them by the civil service law. Whether he is now entitled to a "permanent classified civil service status" as provided by § 38 of the state civil service act is not for us to determine. To that question, this decision is without prejudice.

Orders reversed.