Dryden v. Daly

• Decision Date: 25 June 1918
• Citation: 173 P. 667,89 Or. 218
• Court: Oregon Supreme Court
• Parties: DRYDEN v. DALY, PUBLIC UTILITIES COM'R, ET AL.

173 P. 667

89 Or. 218

DRYDEN v. DALY, PUBLIC UTILITIES COM'R, ET AL.

Supreme Court of Oregon

June 25, 1918

Department 1.

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

Mandamus by J. W. Dryden against Will H. Daly, as Commissioner of Public Utilities of the City of Portland, and others. From the decree rendered, defendants appeal. Reversed, and writ dismissed.

On the petition of the plaintiff the circuit court of Multnomah county issued an alternative writ of mandamus to the defendant Daly as commissioner of public utilities and franchises of the city of Portland, to L. S. Kaiser as superintendent, and to E. J. Gray as general foreman of the water department of that municipality. The document recites the municipal character of the city, the official tenure of Daly, and states that Kaiser as superintendent and Gray as general foreman of the water department are both subordinate to and under the control of Daly. It is said that the petitioner is a regularly and and legally examined appointed, and classified calker and meterman and tapper "under the civil service laws, charter and rules and civil service rules and regulations of the said city of Portland, and is senior in examination, classification appointment and employment" in all of such characters. The writ quotes sections 106 and 107 of the charter of Portland, the substance of which is that persons in one classification shall not be employed in another class without being regularly examined, as if applying for a position for the first time, and that promotion shall be made according to seniority. It is also stated that the board of civil service commissioners of Portland established class K, including therein "skilled labor service," making it apply to "positions requiring knowledge of a trade, craft, or useful art, or requiring special manual or mechanical skill or involving supervision of skilled or unskilled laborers."

The pith of the plaintiff's grievance is included in the fifth and sixth allegations of the writ, reading thus:

"(5) That the position of calker and the position of meterman and tapper are positions within the definition of said class K, and that plaintiff and petitioner was duly examined, classified, and appointed as required by the charter provisions and the rules and regulations of said civil service for the city of Portland, and that said examination of your petitioner and his appiontment and classification was had and made on or about the 16th day of March, 1909.

"(6) That since the 1st day of February, 1916, the defendants and each of them have violated the said civil service charter provisions and laws and the civil service rules and regulations of said city of Portland, and that said defendants did wrongfully and unlawfully deprive the plaintiff of said employment for 10 days during the month of February, and for 24 1/2 days during the month of March and for 3 days during the month of April immediately before the filing of this petition, and during all of said times the defendants did wrongfully and unlawfully employ calkers and metermen and tappers who were junior in appointment and service to the said petitioner, J. W. Dryden, and, further that said defendants did violate said civil service laws, charter provisions, and rules and regulations by employing laborers who had never been appointed or examined or classified in said class K for skilled labor service, and who nevertheless were so employed by the defendants to do the work that plaintiff was entitled to do, and during the period of their said wrongful and unlawful employment the plaintiff was thereby disemployed and held in idleness by the said defendants contrary to, and in violation of, the said civil service charter provisions, laws, rules, and regulations of the city of Portland and of the said civil service board of commissioners."

Aside from admitting that the plaintiff was appointed as a meterman and tapper from March 16, 1909, these quoted allegations of the writ are denied by the answer.

The plaintiff claims to have been deprived of employment for 37 1/2 days, to his damage in the sum of $134.37. This also was denied by the answer. The writ required the defendants immediately to restore the petitioner to his work within his classification as a calker and as a meterman and tapper; that the defendants continue to employ him thereafter according to his seniority when there was employment due to him; and, lastly, that at the hearing of the writ they should pay him $134.37 in satisfaction of the damages alleged, or in the alternative show cause why they had not done so.

The new matter in the answer contains a history of the different changes in the civil service regulations of the city, and in substance alleges that the employment which the plaintiff claims infringed upon his rights was regular by reason of the rule allowing the defendants to appoint men as foremen when there was no list prescribed by the civil service commission from which selections could be made. It appeared in evidence and is admitted that prior to the hearing of the writ the plaintiff was re-employed in his classification, and was then so in the employment of the city. It seems that during the pendency of the action the plaintiff filed a supplemental petition, alleging further violations of his rights to his increased damage, but no amended writ was issued.

The court after a hearing made the writ peremptory, but with this difference, that instead of compelling the defendants to pay the damages alleged they were commanded "that they and each of them forthwith comply with all of the provisions of the charter of the city of Portland, of the ordinances of the city of Portland, and with the rules and regulations of the civil service board of the city of Portland, necessary on their part to be done to enable the plaintiff to obtain the said sum of $225.75 from the city of Portland, that being the total amount of the plaintiff's damage as asserted in the writ and the supplemental petition. The defendants appeal.

W. P. La Roche, City Atty., of Portland (H. M. Tomlinson, of Portland, on the brief), for appellants. W. S. U'Ren and R. B. Sinnott, both of Portland (Sinnott & Adams, of Portland, on the brief), for respondent.

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

There is no cause of action stated against either Kaiser or Gray. It is charged that they were subordinates of Daly, and there is nothing to show in any respect that they had any authority to employ or discharge the plaintiff or to exercise any discretion or control in respect to him. As to them, the writ might as well have been issued to any other employé of the city.

It is a principle of pleading that the pleader should state facts rather than conclusions of law. Litigation may be likened to a syllogism wherein the major premise is the law of the land which need not be stated because it is already known to the court. An apparent exception to this statement is found in the rules about pleading a private statute or a town ordinance under sections 89 and 90, L. O. L. It has also been held in apparent exception to this rule that the court will not...