Crowe v. Albee

• Decision Date: 15 January 1918
• Citation: 87 Or. 148,169 P. 785
• Parties: CROWE v. ALBEE, MAYOR.
• Court: Oregon Supreme Court

169 P. 785

87 Or. 148

CROWE v. ALBEE, MAYOR.

Supreme Court of Oregon

January 15, 1918

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Proceeding in mandamus by M. E. Crowe against H. R. Albee, Mayor of the City of Portland. Demurrer to the alternative writ sustained and proceeding dismissed, and plaintiff appeals. Affirmed.

This proceeding was instituted December 9, 1915, in the circuit court of Multnomah county by M. E. Crowe against H. R. Albee the then mayor of the city of Portland, Or., to compel the reinstatement of the plaintiff as a member of the police force of that municipality, from which he had been dismissed by the defendant. An alternative writ of mandamus was issued stating in effect:

That the city of Portland is a duly organized municipal corporation. That the defendant was the mayor thereof, and by the charter had the appointment and supervision of the police department and of the employés engaged therein. That on November 30, 1914, the plaintiff was and for several years prior thereto had been regularly and permanently appointed a patrolman as a member of the police department of that city under the classified civil service rules at a monthly salary of $100. That on November 30, 1914, he was removed and discharged from the service by the defendant. That within ten days therefrom the plaintiff filed with the civil service board of that city a written demand for an investigation of his removal, alleging that his dismissal was for political or religious reasons, and not for the purpose of improving the public service. That at a meeting of such board held January 14, 1915, an investigation pursuant to such demand was had and evidence was submitted by the plaintiff and defendant. That on February 18, 1915, at a regular meeting of the board when were present two of the three members thereof, an order was made, the material part of which reads:

"That after having carefully considered all of the evidence presented in this case, it was found that the evidence presented on behalf of Policeman Crowe's condition warranted enough consideration to justify the following verdict, to wit: That Mr. Crowe be suspended from the service from the date of his discharge, November 30, 1914, until May 1, 1915, and that an order be entered that he report for duty on May 1st aforesaid"

--of which order the plaintiff and defendant were duly notified. That on May 1, 1915, and on the first day of each subsequent month, the plaintiff presented himself for service, and demanded of the defendant that he be reinstated at the monthly compensation he had been receiving, but such offer and request were refused. That on October 27, 1915, at a regular meeting of the civil service board, another order was made, relating to the application of the plaintiff for reinstatement, reciting the proceedings that were had and the conclusion reached at the original hearing, stating that the patrolman was discharged at the recommendation and upon the complaint of the chief of police "of neglect of duty and conduct unbecoming an officer." That the dismissal--

"was not made in good faith for the purpose of improving the public service. That it is to the benefit of public service to reinstate the said M. E. Crowe to his said position. That the said M. E. Crowe is entitled to reinstatement upon the following conditions: That he be reinstated and his said position restored to him as of date May 1, 1915, with pay from said date, but that he be suspended during the interim. * * * Inasmuch as the minutes of the board's proceedings held at its meeting February 18, 1915, do not state completely and accurately the board's then findings and order of that date in said matter, it is further ordered that these findings, order, and proceedings be entered of record as of February 18, 1915."

The alternative writ further states that on November 20, 1915, due service of the latter order was accepted by the defendant, of whom the plaintiff on December 1st of that year demanded restoration to the position of patrolman, but his application was denied, and that by reason of such order it was the duty of the defendant to reinstate the plaintiff who had no plain, speedy, or adequate remedy at law for the relief sought. A demurrer to the writ, on the ground that it did not state facts sufficient to entitle the plaintiff to the restoration demanded, was sustained, the proceedings dismissed, and plaintiff appeals.

William A. Carter and Nelson R. Jacobson, both of Portland, for appellant. Stanley Myers, of Portland (W. P. La Roche, City Atty., of Portland, on the brief), for respondent.

MOORE, J. (after stating the facts as above).

There has been filed with the librarian of this court a duly certified copy of the charter of the city of Portland, of which organic act judicial notice is required to be taken. Chapter 273, Gen. Laws Or. 1917. Instead of using such duplicate, reference to sections thereof will be made to the charter, as revised by the council of that municipality August 19, 1914, and printed in pamphlet form. Thus the civil service board shall consist of three commissioners to be appointed by the mayor. Chapter 4, § 98. This board is required to classify offices, places, and employments of the public service, and such positions when so arranged shall constitute the classified service of the city. Id. § 100.

"The board shall make rules to carry out the purposes and provisions of this article, which rules shall provide, in detail, the manner in which examinations shall be held and appointments, promotions and removals made in pursuance thereof; and the board may, from time to time, change its rules." Id. § 101.

"The mayor shall have the power to suspend, pending an official investigation, any officer of the city, except councilmen, for any official defalcation or willful neglect of duty, or official misconduct." Section 62.

"No employé in the classified civil service who shall have been permanently appointed under the provisions of this article shall be removed or discharged except for cause, a written statement of which, in general terms, shall be served upon him and a duplicate filed with the board. Such removal or discharge may be made without any trial or hearing. Any employé so removed may within ten days from his removal file with the board a written demand for investigation. If such demand shall allege, or if it shall otherwise appear to the board that the discharge or removal was for political or religious reasons, or was not in good faith, for the purpose of improving the public service the matter shall forthwith be investigated by or before the board, or by or before some officer or board appointed by the board to conduct such investigation. The investigation shall be confined to the determination of the question of whether such removal or discharge was or was not for political or religious reasons, or was or was not made in good faith for the purpose of improving the public service. The burden of proof shall be upon the discharged employé. On such grounds the board may find that the employé so removed is entitled to reinstatement upon such conditions or terms as may be imposed, by the board, or may affirm his removal. The findings of the board, or such officer or board, when approved by the board, shall be certified to the appointing officer and shall be forthwith enforced by such officer." Section 108.

The civil service board in the course of any investigation has power to subpoena witnesses, compel their attendance, administer oaths, examine into books, records, etc., and to compel their production. "Willful false swearing in such investigations and examinations shall be perjury and punishable as such." Id. § 114. If any rules were ever established by the civil service board relating to examinations before it, no mention thereof is made in the writ, nor does that alternative command specify what written charges preferred against the plaintiff by the chief of police and addressed to the mayor, constituted on the part of the patrolman "neglect of duty and conduct unbecoming an officer."

It will be remembered that section 108 of chapter 4 of the charter limits the investigation of the civil service board to a consideration of whether the removal of any person from the classified service was for political or religious reasons, or was not made in good faith for the purpose of improving the public service, and that the burden of proof in such examination is imposed upon the discharged employé. In Imperial Water Co. v. Supervisors, 162 Cal. 14, 17, 120 P. 780, 782, in speaking of the authority of a board of supervisors of a county in California, it is said:

"It does not follow, however, that where the Legislature delegates such power to a local board and provides that it can be exercised only upon certain conditions and upon the ascertainment of certain facts by such board, after a notice and hearing to parties interested, that the proceeding thus authorized is not of a judicial character. Although such boards do not have the character of an ordinary court of law or equity, they frequently

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