Callbeck v. Kell
| Citation | 211 Or. 640,317 P.2d 589 |
| Parties | Ronald E. CALLBECK, Edward E. Hurita and Fred W. Boynton, Respondents, v. Raymond KELL, William Way and John Schum, Civil Service Commissioners of Multnomah County, Oregon, and Terry Schrunk, Sheriff of Multnomah County, Oregon, Appellants, Leonard Givens, Intervenor. |
| Decision Date | 06 November 1957 |
| Court | Oregon Supreme Court |
Thomas B. Brand, Salem, argued the cause for appellants. With him on the briefs were William M. Langley, District Attorney, and Willis A. West, Chief Deputy of Civil Department, Portland.
Glen McCarty, Portland, argued the cause for respondents. With him on the brief was J. W. Rosacker, Portland.
Before PERRY, C. J., and LUSK, WARNER and KESTER, JJ.
This is a proceeding in mandamus. The petitioners-respondents, Ronald E. Callbeck, Edward E. Hurita and Fred W. Boynton, are civil service employees of the sheriff's office in Multnomah County. All hold the rank of sergeant in the uniform division of that office and are eligible for promotion to the rank of lieutenant in that division.
The defendants-appellants, Raymond Kell, William Way and John Schum, at the time of the initiation of the appeal, together constituted the Civil Service Commission for Multnomah County. Terry Schrunk appears as a defendant by reason of the fact that before and at the time of appeal he was holding the office of Sheriff of Multnomah County.
On petition of Leonard Givens, who was the beneficiary of the Civil Service Commission's action, an order was entered making him an intervenor, but he does not come here as an appellant.
Givens, who is the motivating subject of the dispute occasioning the instant proceeding, was once a sergeant in the uniform division under appointment of the then Sheriff Pratt and was promoted by him to a lieutenancy. After this he was demoted by Pratt's successor, Sheriff Elliott. Givens resigned sometime after the demotion and left the state of Oregon for about two years, going to Bellingham, Washington, where he entered business. After a further lapse of three years, he was reinstated in the sheriff's office as a lieutenant in the uniform division. This was done by reason of the action of the Civil Service Commission, and order of the Board of County Commissioners, creating a new, temporary position of lieutenant. Under the order of the County Commissioners, the temporary office of lieutenant created, began as of January 1, 1955, and ended April 30, 1955.
That action prompted the petitioners to bring this proceeding in mandamus to require the Civil Service Commission to remove the name of Givens from the roll of the Civil Service employees and to require the sheriff to certify petitioners' names to the commission in order that one of the three might be appointed to the office last given to Givens.
After a hearing in the circuit court, a peremptory writ was issued and Givens thereupon dropped from the rolls. It appears that the position which Givens last occupied, being a temporary position, had ended by reason of its time limitations, and therefore, no names were certified to the commission by the sheriff as directed in the final writ. From the order directing the peremptory writ, the defendant commission and sheriff appeal.
The position of the petitioners-respondents is that the action of the Civil Service Commission and that of the sheriff, resulting in the temporary re-employment of Givens as a lieutenant, was contrary to the statutes of the state and regulations established thereunder. They also claim the commission was vested with no discretionary power to act as it did.
We are relieved, however, from passing on the merits by reason of our conclusion predicated upon petitioners' motion to dismiss the appeal as moot.
As we have observed, the temporary position of lieutenant filled by Givens ended April 30, 1955, approximately three weeks after the issuance...
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