Corfman v. McDevitt

• Decision Date: 11 October 1943
• Docket Number: 15182.
• Citation: Corfman v. McDevitt, 111 Colo. 437, 142 P.2d 383 (Colo. 1943)
• Parties: CORFMAN v. McDEVITT et al.
• Court: Colorado Supreme Court

142 P.2d 383

111 Colo. 437

CORFMAN v. McDEVITT et al.

No. 15182.

Supreme Court of Colorado, En Banc.

October 11, 1943

Error to District Court, Jefferson County; Samuel W. Johnson Judge.

Petition by A. E. Corfman and others against J. H. McDevitt and others, as Commissioners of the State Civil Service Commission of the State of Colorado, and another, for a citation to be issued ordering the defendants to show cause why they should not be punished for contempt of court for failure to restore the plaintiffs to their former positions as employees of the State Industrial School for Boys at Golden and to pay the plaintiffs their salaries as ordered by the Supreme Court in a prior action. To review an adverse judgment, the named plaintiff along brings error and applies for supersedeas.

Affirmed.

Milton C. Garwood and Omar E. Garwood, both of Denver, for plaintiff in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and Duke W. Dunbar, Asst. Atty. Gen., for defendant in error.

JACKSON Justice.

This case is a corollary of McDevitt v. Corfman, 108 Colo. 571, 120 P.2d 963. In that case we affirmed the action of the district court of Jefferson county in granting a mandamus against the members of the Colorado State Civil Service Commission in favor of three petitioners seeking restoration to positions under state civil service, all of whom were employees of the State Industrial School for Boys at Golden. Nine days after our decision became final, the same three employees filed a petition against the members of the State Civil Service Commission, the acting superintendent and the members of the Board of Control of the State Industrial School for Boys, praying that a citation be issued ordering the defendants to show cause why they should not be punished for contempt of court for failure to restore the plaintiffs to their former positions and to pay the plaintiffs their salaries as ordered by court decree. The district court of Jefferson county entered judgment on January 30, 1942, finding that plaintiffs Hopkins and Thomas had been restored to their positions and their back salaries had been paid in full; that as to the plaintiff Corfman, it had appeared from the evidence that he had been notified of restoration to his position and had declined same and had refused and failed to report for duty pursuant to said notice. It further appeared that, except for a period of approximately seven weeks, he had been gainfully employed since his discharge from the position involved in this cause, and at a larger compensation. The district court ordered that defendants pay the sum of $236.93 as back salary to the said Corfman--this being payment of his salary for the seven weeks when he was unemployed.

Corfman excepted to such portion of this judgment of the trial court as released defendants from the payment of his salary covering the whole period from his wrongful suspension to the time of reinstatement. This case is now Before us on writ of error and application for supersedeas, and we have elected to finally determine the matter on the application.

Plaintiff here asserts that he is entitled to recover the full salary he would have enjoyed but for his wrongful suspension and without considering any earnings he may have received in other occupations during the period of wrongful suspension. Defendant's position adopted by the trial court is that he may recover the compensation he would have drawn from the time when he was wrongfully discharged to the time of his reinstatement, but whatever compensation he has otherwise earned during that period must be allowed as an off-set.

Plaintiff's counsel argue: 'That it is not a matter of contract between the civil service employee and the state or municipality, by force of which the salary is payable; the salary belongs to the civil service employee as an incident to his office, so long as he holds it, and when improperly withheld he may sue for it and recover it. When he does so he is entitled to his full amount, not by force of any contract but because the law attaches it to the office; there is no question of breach of contract or resultant damages.'

This question, as counsel for plaintiff imply, appears to be one of first impression in this state. City of Denver v. Burnett, 9 Colo.App. 531, 49 P. 378, and City of Leadville v. Bishop, 14 Colo.App. 517, 61 P. 58, do not seem to be in point. In the Leadville case the employee held his position under a contract of employment and the opinion definitely indicates the city could discharge the employee without preferring charges against him, without notice and without a hearing. In the Denver case it likewise does not appear that the employee was under civil service, and the opinion in that case cites our opinion in Saxonia M. & R. Co. v. Cook, 7 Colo. 569, 4 P. 1111, in support of the proposition that after an employee has proved that he has been wrongfully discharged it is incumbent upon the defendant to mitigate the damages, if he can, by showing the plaintiff has secured employment elsewhere or that he might have done so by the exercise of reasonable diligence. In the Saxonia case the employee was working under a definite contract for one year, and not under civil service. Board of Capitol Managers v. Rusan, 72 Colo. 197, 210 P. 328, involves the case of a civil service employee who was wrongfully discharged and is the principal case relied upon by the Attorney General. For in that case recovery was allowed for the amount of compensation during the time of actual unemployment. But Rusan sued for the amount of his salary during the time he was improperly excluded from his position as a state employee less the amount of his earnings elsewhere during that period. The case is therefore only persuasive, on the point involved in the instant case, to the extent that it indicates that in the view of Rusan's counsel that was the proper measure of recovery.

Counsel for plaintiff rely upon Fort Smith v. Quinn, 174 Ark. 863, 296 S.W. 722. This case is also reported in 53 A.L.R. at page 921, followed by comprehensive annotations upon which counsel also rely.

In the Quinn case a member of the city fire department under civil service in Fort Smith was wrongfully discharged, and during the period between discharge and reinstatement obtained employment as a fireman in a neighboring city. Although the statement of findings of the trial court and the action of the appellate court in affirming the...