Blinn v. Hassman
| Decision Date | 31 January 1933 |
| Docket Number | 23131. |
| Citation | 18 P.2d 881,162 Okla. 1,1933 OK 37 |
| Parties | BLINN, Mayor, et al. v. HASSMAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Ordinarily, the creation of a city office, not otherwise created by law, is a legislative function to be performed by the legislative branch of the city government.
2. Where a city is operating under a special charter, which provides that all legislative powers of the city, except those reserved to the people thereof, shall be vested in the city council, and the charter does not confer upon any officer or other body the power to create a city office, such office, other than those created by the charter itself, may be created only by the legislative body.
3. The power to create an office ordinarily carries with it the power to abolish such office.
4. There being no express grant of power by the charter of the city of Oklahoma City to the city manager to abolish a city office which may be created only by the mayor and council the city manager is without power to abolish such an office.
5. Prior to the amendment of the charter of Oklahoma City in 1926, all persons employed by the city subject to civil service examination were subject to removal by the mayor and commissioners, and could be suspended or discharged by the heads of the departments under which they were employed, for neglect of duty, insubordination, and other causes named in the charter, subject to the right of appeal to the board of commissioners, who were given judicial powers to try and finally determine the matter. Each commissioner was the head of a department, but by the amendment the board of commissioners was abolished and a council and mayor provided and the office of city manager was created, and the city manager was made the chief administrative officer of the city, and was given all administrative powers theretofore exercised by the commissioners, and the city manager was given power to appoint all officers and employees subject to civil service examination, and the city manager was given power to dismiss any officer or employee appointed by him whenever, in his judgment, the interests of the city so required, except as otherwise provided in the civil service provision of the city charter, but no judicial powers were conferred upon the mayor and council to hear and determine appeals. Held, that, after the amendment, the power to remove such officers and employees was in the city manager exclusively, and that there is now no body authorized to hear and determine appeals from his action in discharging such officers and employees.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action in mandamus by Charles T. Hassman against Clarence Blinn Mayor of Oklahoma City, and others. From a judgment in favor of the plaintiff granting the writ of mandamus, the defendants appeal.
Judgment reversed, with directions.
W. H Brown, Municipal Counselor, and A. P. Van Meter, Asst. Municipal Counselor, both of Oklahoma City, for plaintiffs in error.
Lillard, Gibbons & Wheeling, of Oklahoma City, for defendant in error.
This is an appeal from a decree of the district court of Oklahoma county, awarding a peremptory writ of mandamus, commanding the mayor and council, the city health director, and city manager of Oklahoma City, to restore Charles T. Hassman, defendant in error, to the office of position of quarantine officer or inspector of quarantine affairs in the health department of said city, from which position or office the trial court found that said Hassman had been removed illegally, unlawfully, and in violation of the provisions of the charter of said city.
The action was brought by Hassman, hereinafter referred to as plaintiff, against the mayor, members of the city council, the city health director, and city manager, to compel the restoration of plaintiff to the "office of Quarantine Officer" of said city.
Plaintiff alleges that for about three years prior to January 4, 1928, he had been employed as quarantine officer; that on said date, pursuant to the order of the civil service commission of the city, he took the civil service examination provided for in the city charter, and was informed by the civil service commission that he had passed the examination satisfactorily, and was given such rating as would qualify him for said position; that thereafter he continued to hold the position for the required six months probationary period, and thereafter until May 30, 1931, at which time he was, without cause or previous warning or notice, and without a hearing, discharged and removed from said office by John L. McClelland, the then city manager, and that he was denied the right of an appeal from said order to the mayor and council. It is further alleged that the office of quarantine officer is in the health department and under the direct supervision of the director of health; that said office is one of the offices classified and known as a civil service office under the provisions of the city charter, and that his removal was contrary to the express provisions of the charter.
Alternative writ was issued. For cause of refusal to restore plaintiff to office, defendants in their answer and return denied each and every allegation in the writ, except such as are thereinafter admitted. They admitted that plaintiff Hassman was, until the 30th day of May, 1931, "a duly appointed and acting Quarantine Officer of the City of Oklahoma City." It was then alleged in substance that the position of quarantine officer held by plaintiff was an appointive position created by the city manager; that plaintiff was holding such position only by virtue of the creation thereof by the city manager; that plaintiff was removed by said officer for cause and for the best interest of the city; and that, after his removal, plaintiff had made no demand or request of the city manager for hearing as to the cause for his removal; that the action of the city manager is final; and that the mayor and council were without power or jurisdiction under the charter to interfere by appeal to them or otherwise. They answered further that the issuance of a peremptory writ would be useless and unavailing in that, since the petition was filed and the alternative writ issued, the position theretofore held by plaintiff had been abolished by the order and direction of the city manager, the chief administrative officer of the city, in the interest of economy, and because the position was no longer necessary, and that the duties theretofore performed by plaintiff could be, and were being, performed by an inspector employed in the same branch of the city government.
Upon the issues thus joined, evidence was taken, and thereafter a peremptory writ was awarded.
There are eight assignments of error presented principally upon two propositions: That the court committed error in its judgment directing issuance of the peremptory writ, first, because there was never such a position as quarantine officer legally created, and, second, that, if such position had ever existed, it had been abolished before the trial.
Section 7, article 4, of the charter, creates five departments, among which is the department of public safety, and that the city council may, by ordinance, create new departments or subdivisions thereof, combine or abolish existing departments, and distribute the functions thereof or establish temporary departments for special work.
By section 9 of the same article the health department is included in the department of public safety. Article 3 creates a civil service commission to consist of three members. Section 3 of Article 3 provides:
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