Luellen v. City of Aberdeen

• Decision Date: 03 May 1944
• Docket Number: 29029.
• Citation: 148 P.2d 849,20 Wn.2d 594
• Parties: LUELLEN v. CITY OF ABERDEEN et al.
• Court: Washington Supreme Court

148 P.2d 849

20 Wn.2d 594

LUELLEN v. CITY OF ABERDEEN et al.

No. 29029.

Supreme Court of Washington, En Banc.

May 3, 1944

Rehearing Denied June 22, 1944.

Action by E. O. Luellen against City of Aberdeen and others for an adjudication that plaintiff's removal as captain of police was illegal and that plaintiff is entitled to the standing and status of a member in good standing of police department. From a judgment of dismissal after a demurrer was sustained, plaintiff appeals.

Reversed and remanded with instructions.

MILLARD BEALS, and STEINERT, JJ., and SIMPSON, C.J., dissenting.

Appeal from Superior Court, Grays Harbor County E. F. Freeman, judge.

T. H. McKay, of Aberdeen, for appellant.

A. D Gillies, of Aberdeen, for respondents.

GRADY Justice.

This action was brought by E. O. Luellen against the city of Aberdeen, its mayor and chief of police, the members of the civil service commission, and the city comptroller, to secure a judgment of the court adjudging that his removal as captain of police was illegal and void, and that he is entitled to the standing and status of a member in good standing of the police department of the city. The defendants demurred to the complaint. The demurrer was overruled by the court but without prejudice to a reargument thereon at the time the case was called for trial.

At the opening of the trial, the court permitted counsel for plaintiff to make a statement of the case. A copy of the civil service ordinance referred to in an amended complaint and the amendments thereto was made a part of the record by consent of all parties. The court considered the amended complaint, the ordinance, and the statement of counsel for plaintiff as a part thereof, and entered an order sustaining the demurrer upon the grounds that plaintiff was guilty of laches, that the action had not been commenced within the time allowed by law, and that the amended complaint, as supplemented by the ordinance and the statement of counsel for plaintiff, did not state facts sufficient to constitute a cause of action. The plaintiff refused to plead further, and a judgment was entered dismissing the action, from which this appeal is taken.

In order to have a proper perspective of what is Before this court for decision, the substance of the complaint and the statement of counsel and pertinent portions of the ordinance must be set forth.

For more than ten years prior to October 3, 1938, appellant had been a member of the police force of the city of Aberdeen, and, at that date, was captain of police. In June, 1938, appellant became ill and was unable to perform his duties, which illness and inability to work was not caused by dissipation or abuse. He was granted a leave of absence, and, on the advice of his physician, went to California. His regular salary was paid to him up to October 1, 1938.

In 1932, the city of Aberdeen passed an ordinance placing police officers under civil service. The substance of the provisions of the ordinance which we deem applicable to the appellant is as follows:

The police officers in the employ of the city at the time of the passage of the ordinance were deemed to be qualified to enter the civil service upon having a physical examination by the health officer and filing a certificate of good health. They were to hold office until removed or retired, and could be removed by the appointing officer (which we hold to be the chief of police) only upon the filing by him with the civil service commission of a statement in writing of the reasons therefor, The police officer was given five days thereafter within which to demand an investigation by the commission, and the commission was authorized to affirm or reverse the order of the appointing officer. A further provision was made that a police officer might retire on account of age or disability, in accordance with the provisions of the respective pension fund acts and the laws of the state, and that leave of absence might be granted, in which case, if for disability on account of sickness, the officer, when returning to duty, would resume his former position.

'On October 3, 1938, the chief of police wrote appellant a letter as follows:

'Please be advised that I, as Chief of thePolice Department of the City of Aberdeen, have on this date ordered your removal as a member of the Police Department of the City of Aberdeen.

'This action is taken for the reason that your conduct in the past has been such as to bring discredit to the department and unbecoming to a Police Officer. This action has been taken only after thoroughly investigation your past conduct, and for the good of the department. There is nothing for me to do but to order your removal.

'I am today certifying to the Civil Service Board a statement in writing giving my reasons for your removal. Under the law you have your right of appeal to the Civil Service Board, as provided by the Civil Service Ordinance of the City.'

It does not appear what reasons the chief of police gave to the civil service board for removal of appellant from the police force. The appellant was not informed what the reasons were other than as stated in the letter from the chief of police. Some after receiving the letter, appellant wrote to the commission protesting his removal, and his wife also made a written protest. The record does not show when these protests were made, but thereafter the commission notified the appellant that it had made an investigation of the reasons given for his removal, and had approved the action taken by the chief of police.

The appellant made application to the board of police pension fund commissioners for a pension, but it was denied. The record does not affirmatively show why the petition was denied, but we infer that it was for the reason that the appellant was not then a member of the police force and therefore was in no position to apply for retirement and a pension.

A mandamus proceeding was then brought against the board. The court decided mandamus was not the proper remedy. A certiorari proceeding was then instituted. The action of the board was sustained by the court. The question involved was whether the appellant was entitled to a pension. The legality of the removal of the appellant from the police force was not brought Before the court in any of these proceedings. No appeal was taken from either judgment of the court. Later, another certiorari proceeding was brought, but was dismissed on sustaining a plea of res judicata. Thereafter, the appellant employed his present counsel, and this action was brought to secure reinstatement as a police officer so that he might be in a position to apply for retirement and a pension.

There are four questions here for review: (1) Whether the appellant has chosen the proper remedy; (2) whether he is barred by laches from maintaining this action; (3) whether the action was brought within the time limited by law; and (4) whether the amended complaint, supplemented by the ordinance and the statement of counsel for appellant, states a cause of action.

First. It is urged by respondents that, when appellant was discharged, his remedy was to have the action of the chief of police and the civil service commission reviewed either by certiorari or mandamus, and that he cannot maintain the kind of action he has brought.

There is no doubt that the appellant might have maintained a certiorari proceeding and had the action of the city officials reviewed, but all that he could have accomplished would have been a judgment of the court that his discharge was (as we later point out) null and void on the face of the city records, and, if the city officials did not then see fit to reinstate him as a policer, he would still have to proceed to compel his reinstatement.

It would seem too plain for argument that, if the proceedings taken to discharge a civil service employee under charter provisions are void on their face, he would have the right to treat them as a nullity and demand a reinstatement, and, if this was denied him, then proceed by mandamus. Although it is provided by Rem. Rev. Stat. § 1002, that a writ of certiorari may issue to correct a void proceeding, such a proceeding was optional with appellant. He might have felt it safe to secure an adjudication that the proceedings leading up to his final discharge were void, but the law does not require him to do so in order to assert his rights. In re Long Island R. Co. v. Hylan, 240 N.Y. 199, 148 N.E. 189; Locke v. Selectmen of Lexington, 122 Mass. 290f 11 C.J., Certiorari, 109, § 46.

The principle upon which these authorities rest is that it would serve no useful purpose and would be an idle and useless thing to prosecute a proceeding to set aside that which is void, hence is unnecessary even though the right is given so to do. Our attention has not been called to any case in which this court had held that review by certiorari is an exclusive remedy in cases of this kind.

We do not think it accurate to say that appellant might have had the legality of his discharge reviewed by mandamus. Mandamus is sought to compel action, and not to review it. In some of the cases decided by this court, the aggrieved civil service employees have proceeded by certiorari and in others by mandamus. In the latter cases, the employees have sought to compel reinstatement, and their complaints or affidavits alleged facts which they claimed rendered their discharge unlawful, and the answers of the adverse parties disclosed substantially the same matters as would have appeared in a return to a writ of certiorari.

In the certiorari cases, the courts proceeded to determine from the records Before them whether they would review them, and, in the mandamus cases, proceeded to try the...