Getty v. Witter, 14919.
| Decision Date | 10 March 1941 |
| Docket Number | 14919. |
| Parties | GETTY et al. v. WITTER et al. |
| Court | Colorado Supreme Court |
Error to District Court, Jefferson County; Samuel W. Johnson Judge.
Mandamus proceeding by E. N. Witter and others against H. C. Getty and others, as Commissioners of the State Civil Service Commission of the State of Colorado, and others to cancel examination held for positions at State Industrial School, to cancel any eligible lists for positions at the school established pursuant to examination held, and to compel the State Civil Service Commission to give notice for and hold a nonassembled examination for such positions on basis given to applicants of somewhat similar institutions. To review an adverse judgment and orders, the respondents bring error. On application for supersedeas.
Judgment and orders reversed, and case remanded, with directions.
Byron G. Rogers, Atty. Gen., Joseph D. Iskow, Asst Atty. Gen., Gail L. Ireland, Atty. Gen., Theodore A. Chisholm and Donald H. Meyer, Asst. Attys. Gen., and Ernest Lee Williams, of Denver, for plaintiffs in error.
A. D Quaintance, of Denver, for defendants in error.
This is a proceeding in mandamus, brought by defendants in error, to whom we hereinafter refer as relators, or by name, against plaintiffs in error, hereinafter designated as respondents or as 'commission,' and 'board,' respectively, when specific reference is made to the Civil Service Commission and to the board of control of the State Industrial School for Boys at Golden, Colorado. The writ was issued on behalf of relators 'and others similarly situated.' Oral argument having been had herein, we dispose of this case on application for supersedeas.
The objective sought in procuring the issuance of the writ was: (a) To cancel an examination held by the commission pursuant to notice given October 6, 1939, for positions at the State Industrial School; (b) to cancel and annul any and all eligible lists for positions at said school established pursuant to an examination held December 4, 1939; (c) to compel the commission to give notice for and hold a non-assembled examination for said positions upon a basis given to applicants of somewhat similar institutions.
Briefly stated, the facts are: 'October 6, 1939, the commission gave notice of examinations for positions at the following state institutions: the Colorado State Hospital at Pueblo, Homes and Training Schools for Mental Defectives at Ridge and Grand Junction, the Soldiers and Sailors Home at Monte Vista, State Home for Dependent and Neglected Children at Denver, the Girls Industrial School at Morrison, and the State Industrial School for Boys at Golden. Pursuant to said notice the commission held non-assembled or oral examinations for positions at all of these institutions except for positions at the State Industrial School for Boys, for which an assembled and written examination was given December 4, 1939. Applicants who took the non-assembled or oral examination were graded on the following basis:
Experience ................................... 50%
Education and Training ....................... 25%
Oral Examination ............................. 25%
----
Total ................................... 100%
Applicants who took the assembled or
written examination for positions at the
State Industrial School for Boys were
graded on the following basis:
Written Examination .......................... 40%
Training and Experience ...................... 30%
Oral Examination ............................. 30%
----
Total ................................... 100%
It also was provided in the rules concerning the examination for industrial school positions that employees would not be permitted to take an oral examination unless they attained a grade of seventy per cent or more in the written examination. Relators E. N. Witter, T. P. Price and H. B. Smith, who had been employed at the industrial school for a number of years, took this written examination, but, failing to attain the required grade of seventy per cent or more, no oral examination was given them, and they were not certified to the board as being on the eligible list. The trial court found that the commission abused its discretion in not giving them a non-assembled examination in the same manner as that given to applicants in the other named institutions; also finding that there 'is no difference, in a general way, between the employees of the various institutions.' On these findings it adjudged that the alternative writ be made peremptory.
The ultimate question for out determination is whether the assembled examination, pursuant to the notice of Cotober 6 1939, was valid; if it was, all remaining issues raised require no discussion. The trial court rightly stated, in its opinion, that 'from a legal standpoint, the relators are temporary appointees,' and 'there is no question but what the board [commission] has the discretion as to the method of testing applicants for positions and that this discretion is one that cannot be inquired into by the court.' It being apparent that we here are dealing with discretionary power of the commission, the controlling questions are: Is there a clear legal right on the part of relators to compel the commission by mandamus to give them a non-assembled examination, and to cancel the results of the examination held December 4, 1939? And is there a clear legal duty resting upon the commission to give such an examination? Unless there is, mandamus will not lie. 38 C.J. p. 600, § 75; 18 R.C.L. p. 128, § 41. See, also, Civil Service Commission v. People ex rel., 88 Colo. 319, 295 P. 920; People ex rel. v. Ingles, ...
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