City of Phoenix v. Sanner, Civil 4109

• Decision Date: 20 November 1939
• Docket Number: Civil 4109
• Parties: CITY OF PHOENIX, a Municipal Corporation, Appellant, v. WARREN SANNER, Appellee
• Court: Arizona Supreme Court

95 P.2d 987

54 Ariz. 363

CITY OF PHOENIX, a Municipal Corporation, Appellant, v. WARREN SANNER, Appellee

Civil No. 4109

Supreme Court of Arizona

November 20, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr Hess Seaman, City Attorney, Mr. William C. Fields, his Assistant, for Appellant.

Mr George M. Sterling, for Appellee.

OPINION

LOCKWOOD, J.

Warren Sanner, hereinafter called plaintiff, brought suit against the City of Phoenix, a municipal corporation, hereinafter called defendant, to recover certain wages which he alleged were due him for the time he had been illegally discharged from the position of inspector in the street railway department of the city.

The allegations set up by the complaint were, in substance, that plaintiff at all times mentioned in his complaint was a duly certified railway inspector under the civil service rules of the City of Phoenix, and that notwithstanding his record entitled him to perform the duties of such inspector and receive the proper wages therefor, the defendant had refused to permit him to perform them, although he was at all times ready, willing and able to do so.

The city answered, alleging that during the time for which plaintiff sought to recover wages he was lawfully laid off and dismissed from duty, and further that he never at any time was a permanent civil service employee of the defendant but was an employee by sufferance only, under a temporary emergency appointment, and, therefore, subject to discharge at will.

The case came to trial before the court sitting without a jury, and judgment was rendered in favor of plaintiff, whereupon this appeal was taken.

The real issue is stated by the defendant as follows:

"Did the plaintiff have a permanent civil service status during the period alleged in his complaint, or was he merely an employee at sufferance subject to dismissal or layoff at the will of defendant. If he was an employee at sufferance only he was not entitled to judgment for salary accrued during the period alleged in his complaint."

and plaintiff accepted this issue with the corollary that if he did have a permanent civil service status during the period set up in his complaint he was entitled to the judgment which was rendered. We consider the case on the issues thus settled.

The issue for our determination then is, what was the civil service status of the plaintiff during the period in question. The record shows that plaintiff was originally appointed in 1932. He was dismissed in 1934, but reinstated by order of the civil service board. He was again laid off from service on August 1, 1935. He protested before the civil service board against this layoff and was ordered reinstated, which was done October 30th. He failed to report for duty and on December 11th he was again dismissed. He protested against this dismissal, and on June 5, 1936, the civil service board transmitted the following message to the city manager:

"Dear Mr. Stallcup:

"I have checked the Civil Service record of Warren Sanner and attach copy hereto for your information.

"Mr. Sanner has been employed by the City of Phoenix since July 1, 1932. On this date he was appointed under an Emergency Appointment. Resolution of the Civil Service Commission provides that any appointments irrespective of class, where the employee who has completed his six months probationary period prior to May 1, 1933, will be certified. This is in line with the opinions and rulings of various Civil Service Commissions for the past ten years; therefore, Warren Sanner is to be considered a certified employee of the City of Phoenix, as Street Railway Inspector on the Street Railway System."

The is in effect a finding that plaintiff was a certified employee of the defendant under the protection of the civil service ordinance and regulations issued in pursuance thereof, and it follows, as a matter of law, that he could not be dismissed except in accordance with such rules and regulations. It is tacitly admitted his dismissal did not conform with them.

No direct attempt was ever made by the defendant to question or review this finding of the board, and on June 9th plaintiff presented the letter just quoted to the street railway department, and was returned to duty on that date. On June 22d he presented a claim to the city for salary for the time which he alleged he had been illegally laid off. The city refused to pay it, and this suit was filed on July 30th.

At the trial of the case the original written order appointing plaintiff to his position was put in evidence and also, over the objection of defendant, an alleged contemporaneous conversation in the presence of the then city manager, which would tend to show that it was meant that plaintiff's position should be a permanent, and not merely a temporary, one.

Defendant argues that the original appointment shows that plaintiff was merely a temporary employee, and that under the civil service regulations and the ruling of this court in the case of Reading v. Maxwell, 46 Ariz. 500, 52 P.2d 1155, after sixty days had elapsed he was merely an employee by sufferance, not protected by civil service rules, and subject to discharge at any time for any reason.

Plaintiff argues that the record shows his appointment by the city manager in 1932 was, in reality, a permanent one, and that under our decisions in Redding v. Maxwell supra, and Paddock v. Brisbois, 35 Ariz. 214, 276 P. 325, and the provisions of section 1095 of Ordinance No. 715 of the City of Phoenix, as approved by the people April 4, 1933, he was blanketed into the...