Kay v. City of Portland

• Decision Date: 01 February 1916
• Citation: 154 P. 750,79 Or. 146
• Parties: KAY v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

154 P. 750

79 Or. 146

KAY v. CITY OF PORTLAND.

Supreme Court of Oregon

February 1, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by Thomas Kay against the City of Portland. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff brought this action to recover $1,300 alleged to be due him for services as patrolman on the police force of the city of Portland. The complaint alleged, in substance, that about nine years before the ______ day of ______, 1914, plaintiff was employed as a patrolman, and served as such for about six years, during which time he was promoted to the office of sergeant of police, and that about three years before the filing of the complaint herein he voluntarily resigned; that in April, 1912, he made application in the classified civil service of the defendant, in accordance with the ordinances rules, and regulations adopted and enforced in said city, to be reinstated to any vacancy in the police department of the defendant, and was thereafter duly and regularly recommended reinstated, and permanently appointed to the office of police sergeant of detectives in the said police department, all under the rules and regulations of the classified civil service; and that by said reinstatement he became a public officer of said defendant, and was and is entitled to all the rights, privileges, and emoluments of such office. Plaintiff avers that, as such police sergeant of detectives, he was employed by defendant and paid as a salary $125 a month; that he was paid said salary each month from the 1st day of May 1912, until the 1st day of September, 1912, at which time he was reduced in rank, without fault on his part, his consent or a trial, from the position of sergeant of detectives to patrolman at a decreased salary of $100 a month; that he was employed by defendant and occupied said office of patrolman from the 1st day of September, 1912, until the 8th day of October, 1912, when, while plaintiff was such employé of defendant, without any fault on his part, the defendant city acting through its chief of police, dismissed the plaintiff from his said office, contrary to law and without any cause or hearing, and refused to permit him to perform any work or duties connected with his said16 office as patrolman or otherwise, and wrongfully and without cause excluded plaintiff from his said office and prevented him from performing the duties thereof; that on the 11th day of October, 1912, while plaintiff was so employed, the executive board of defendant removed and discharged the plaintiff from his said office of patrolman, wholly without cause or fault on his part, and without notice to him, and witnout an opportunity for him to be heard; that no written statement of the cause of his removal and discharge was prepared and served upon him, although he duly demanded a copy of the same, nor was any written notice of the cause of plaintiff's removal and discharge in general terms, or otherwise, ever served at any time upon plaintiff or copy thereof filed with the civil service commission of said city or elsewhere; that plaintiff was given no notice to appear and answer any charges whatever; that he was not permitted to serve longer as a patrolman, or otherwise, but was prevented therefrom by the executive board of the defendant; that the action of said executive board in making plaintiff's dismissal and discharge is and was against his wishes, and without his consent, and wholly without his cause and fault. It is further alleged that plaintiff made application to the civil service commission to investigate the reasons for his discharge, which request was refused. Then follow allegations of plaintiff's readiness and willingness to perform his duties and other matters not material on this appeal. The city answered admitting that plaintiff had been employed as a patrolman as alleged, and that he had resigned that position about three years before the commencement of the action, making a qualified denial of all the other allegations of the complaint, and by way of a further and separate answer alleging: That on May 8, 1903, plaintiff was appointed to the position of police officer in accordance with the civil service provisions of defendant's charter. That on March 26, 1909, he voluntarily resigned from such position. That on March 2, 1912, he made application to be again appointed to a position in the classified civil service, and was reinstated on the eligible list on said day in accordance with defendant's charter. That thereafter, a vacancy occurring, the civil service commission certified the names of three eligible candidates, including that of plaintiff, and on May 1, 1912, the executive board appointed plaintiff to such vacant position on probation. That the charter of defendant provides: "The appointing authority shall appoint to each vacant position on probation for a period to be fixed by the rules one of the candidates so certified. Within such period the appointing authority may discharge such probationer, and, in like manner, appoint another of such candidates, and so continue until all said candidates have been so appointed." That pursuant to such authorization the civil service commission adopted a rule providing that the period of probation should be six months from and after the date of appointment. That thereafter, on the 11th day of October, 1912, plaintiff was discharged by the executive board. Plaintiff filed a reply admitting that he had served as alleged up to March, 1909, and that at said date he voluntarily resigned, and that on March 2, 1912, he applied for appointment under civil service rules and was reinstated. The reply admitted the appointment on the 1st day of May, 1912, and...