Browning v. City of Seattle, 33825
| Citation | 50 Wn.2d 813,314 P.2d 648 |
| Decision Date | 29 August 1957 |
| Docket Number | No. 33825,33825 |
| Court | United States State Supreme Court of Washington |
| Parties | Frank H. BROWNING, Appellant, v. The CITY OF SEATTLE, a municipal corporation; Malcolm E. McLaren, Dorothy Leavell, and George E. Mathieu, as Civil Service Commissioners of the City of Seattle; David Levine, W. C. Thomas, G. H. Culver, James Robertson and P. C. Spowart, as members of the Board of Administration of the Retirement System of the City of Seattle, and of such System's Retirement Funds; and Don Eastvoid, as Attorney General of the State of Washington, Respondents. |
Kennett, McCutcheon and Soderland, Seattle, for appellant.
A. C. Van Soelen, Glen E. Wilson, Seattle for respondents.
This is an appeal from a judgment in favor of the defendant, dismissing an action brought by a civil service employee of the City of Seattle for restoration of his former employment, back salary, and other relief, tried to the court.
May 9, 1922, Frank H. Browning became a civil service employee of Seattle, with the title of 'Engineer-Examiner.' He occupied that position at all times material to this case.
October 8, 1947, he became sixty-five years of age. Section 13(a) of Ordinance No. 57075, as amended, which was 'An Ordinance creating and establishing a retirement and pension system for superannuated and disabled civil service officers and employees of the City of Seattle' provided:
In 1947 and 1948, requests for extension of time for retirement were made and granted. However, on November 1, 1949, the civil service commission ruled that it could no longer recognize Mr. Browning's status as a regular civil service employee, although it fully appreciated the able services which he had rendered the city. His account with the city employees' retirement system was closed and no further contributions were accepted from him.
Nevertheless, he continued with his duties under temporary employment as a 'provisional' employee, and was so carried on the payroll. This employment continued for a period of two years, ending December 31, 1951. At that time the city council discontinued the position of engineer-examiner.
During the two-year period just mentioned, Mr. Browning received no pension. He began receiving it on January 1, 1952. It was computed for a period prior to November 1, 1949, the date of his retirement.
This action was brought against the city, naming as additional defendants the members of the civil service commission and the members of the board of administration of the retirement system. Plaintiff sought to compel the city to restore him to his former position and for judgment for salary (together with salary increases to which he alleged he was entitled) plus interest, less certain deductions on account of retirement, which would have been made subsequent to November 1, 1949. He also sought a judgment requiring the board of administration to compute his retirement allowance in accordance with the provisions of the applicable ordinances of the city, and, in this connection, he sought the appointment of a referee to investigate the administration of the retirement fund.
The trial court made and entered findings of fact and concluded that, under the city charter, the legislative authority of the city was authorized to provide for compulsory retirement for age; that it did so and that the plaintiff was duly and lawfully retired at the age of sixty-seven; that the plaintiff did not establish that the administration of the retirement fund was faulty or defective; that he had not been discriminated against; and that he was not entitled to the relief prayed for.
Judgment of dismissal was entered and this appeal follows.
Appellant presents thirty assignments of error. Although we agree with the trial court that there are only two issues involved, (1) the legality of appellant's retirement on November 1, 1949; and (2) the question of discrimination; we shall group the assignments as follows:
1. Error in making findings and concluding that the ordinance and rules under which appellant was retired were valid and in full force and effect, and that he was lawfully retired at age sixty-seven; and in refusing to find that the ordinance and rules were invalid and that appellant was wrongfully and unlawfully separated from his position under the guise of compulsory retirement;
2. In entering findings and in denying proposed findings on the question of discrimination, and in refusing to find that the action of the city council in eliminating the position of engineer-emaminer was discriminatory and an abortive attempt to get rid of him;
3. In finding that after November 1, 1949, appellant was a mere provisional employee;
4. In finding that appellant's account was properly kept, and that the administration of the retirement fund was in accordance with law, and in refusing proposed findings...
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