Civil Service Com'n of City of Tucson v. Foley, 5657

• Decision Date: 25 May 1953
• Docket Number: No. 5657,5657
• Parties: CIVIL SERVICE COMMISSION OF CITY OF TUCSON et al. v. FOLEY.
• Court: Arizona Supreme Court

Page 384

257 P.2d 384

75 Ariz. 364

CIVIL SERVICE COMMISSION OF CITY OF TUCSON et al. v. FOLEY.

No. 5657.

Supreme Court of Arizona.

May 25, 1953.

Harry L. Buchanan, Tucson City Atty., and J. Luther Davis, Asst. City Atty., Tucson, for appellants.

Conner & Jones by James M. Murphy, Tucson, for appellee.

PHELPS, Justice.

Harry E. Foley, plaintiff-appellee, obtained orders on February 13 and February 18, 1952, respectively, in the superior court of Pima County in certiorari proceedings against the Civil Service Commission of the city of Tuscon and its members, defendants-appellants herein, directing the commission to reinstate plaintiff to the position of desk sergeant in the police department of that city, from which defendants prosecute this appeal. The parties will be hereinafter referred to as plaintiff and the commission.

Plaintiff entered the service of the city of Tucson as a member of its police department in 1932. Some time thereafter, not disclosed by the record, he became a desk sergeant in the department. As such, he was at all times subject to the rules and regulations of the civil service commission of the city.

On March 27, 1939, plaintiff requested the commission to grant him a leave of absence for 90 days on account of 'ear trouble'. On June 12 following he wrote a letter to the chief of police requesting that his temporary reduction from police sergeant to that of police patrolman be continued for another 90 days from July 1 to September 30, 1939, in order that he might further recuperate from his disability. The record discloses no further letters from plaintiff concerning his position until July 15, 1940, when he wrote the commission to inquire what his status was after the commission had abolished the position of desk sergeant and changed it to communications and record sergeant. On August 9, 1940, pursuant to correspondence between plaintiff and the commission, he was restored to the position of desk sergeant and continued to perform the duties thereof until July, 1941, when he again requested to be relieved from such duties for at least one year or until such time as his health would permit him to return to the desk.

The chief of police thereafter on July 23, 1941, granted the request and permitted him to assume the duties of a patrolman with the rate of pay fixed at that of patrolman first class. In January, 1942, plaintiff presented to the chief of police a doctor's certificate that he was physically able to resume his duties as desk sergeant and on February 1, did resume such duties. The following October plaintiff against requested to be relieved of the duties of desk sergeant on account of poor hearing and voluntarily asked to be demoted to patrolman first class, and to have his name placed on the re-employment list. This requests was granted by the chief of police and approved by the commission.

Subsequently on January 30, 1943, plaintiff declined appointment to the position of desk sergeant for a period of six months because of poor hearing. The record next discloses that on November 8, 1943, the director of personnel in accordance with the rules and regulations of the commission certified the name of plaintiff for the position of sergeant of police as the only candidate on the eligible list for such position. The certification, however, was made subject to a physical examination as provided for under section 12, rule V, of such rules and regulations. Upon being notified of the action of the commission and request being made in said notification for him to report to the chief of police as early as convenient for such examination or to sign a waiver (included as a part of such notice) plaintiff refused to either take a physical examination or to sign the waiver.

The commission thereafter on November 12, 1943, removed plaintiff's name from the re-employment list and assigned as reason therefor his refusal to take the physical and medical examination. The record discloses no further action by plaintiff until September 12, 1949, when he informed the commission by letter that he was then ready to return to his duties as desk sergeant. This request was denied and the secretary of the commission ordered to advise Foley of the action taken. Later, on January 11, 1950, plaintiff personally appeared before the commission and requested that he be placed on the re-employment list for the position of desk sergeant. The commission thereupon requested an opinion of the city attorney which was not furnished to it until May 29, 1951.

The opinion of the city attorney was adverse to plaintiff. The commission acted upon his advice and refused to authorize plaintiff's reinstatement as desk sergeant. Plaintiff then asked for a hearing before the commission which was granted. He was represented at such hearing by counsel and after due consideration the previous ruling was affirmed. Plaintiff at no time has offered to take a physical examination but instead thereof, brought this action in certiorari as above stated.

The commission has assigned a number of errors which in substance are:

1. That the court exceeded its jurisdiction in directing the commission to reinstate plaintiff;

2. That even if it had jurisdiction to direct plaintiff's reinstatement as police sergeant the commission had no authority under the powers vested in it to legally comply with such order;

3. That the power of appointment is vested in the chief of police and city manager;

4. That the court erred in reversing the order of the commission for the reason that plaintiff refused to submit to a physical examination as required by its rules and regulations;

5. That plaintiff's right to reinstatement as desk sergeant was lost because whatever rights he had to such reinstatement by virtue of being on the re-employment list expired by operation of law on October 26, 1944, under the provisions of rule VI, section 4, rules and regulations of the commission;

6. That it is against public policy to allow one to wait five years to assert that he had been deprived of any rights by the commission and then waiting from January, 1950, to August, 1951, before requesting a rehearing.

The first question then is: Did the court have jurisdiction to enter the orders or judgment on the dates above specified? The orders are identical and we will treat them as a final judgment from which this appeal was taken.

The function of certiorari is limited to the question of whether the inferior tribunal has regularly pursued its statutory authority, i. e., has it acted within or in excess of its jurisdiction? The court on review of such proceedings may not weigh the evidence introduced before the inferior tribunal on which its decision or finding is based in order to determine the correctness of the decision reached but it will consider such evidence in so far as it may tend to show jurisdiction or the lack thereof, to render the decision about which complaint is made and questioned in the certiorari proceeding. It has never been used to search for error in the judgment rendered where the court or other tribunal had jurisdiction. Griffin v. Denton, 61 Ariz. 454, 150 P.2d 96; Hunt v. Norton, 68 Ariz. 1, 198 P.2d 124, 5 A.L.R.2d 668.

If the commission had jurisdiction to make the order of which complaint is made and the court so found, the limit of the authority of the court under the law was to affirm the order of the commission. If the commission was without jurisdiction and the court so found, the limit of the court's authority was to vacate and set aside such order. It was wholly without jurisdiction to direct the commission to reinstate plaintiff or to order his reinstatement by any one. Therefore, regardless of whether the commission had...