McCain v. Collins
| Citation | 164 S.W.2d 448,204 Ark. 521 |
| Decision Date | 15 June 1942 |
| Docket Number | 4-6848 |
| Parties | MCCAIN, LABOR COMMISSIONER, v. COLLINS |
| Court | Supreme Court of Arkansas |
Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge; reversed.
Reversed and dismissed.
P A. Lasley, for appellant.
Chas B. Thweatt, for appellee.
The appellant is the Commissioner of the Department of Labor of Arkansas, and the other appellants are the members of the merit system council and the merit system supervisor. The appellee was the qualified director of the employment security division of the department of labor of Arkansas.
The appellee was discharged by the Commissioner of Labor and appealed to the merit system council from said dismissal. The merit system council, after a hearing, approved the action of the labor commissioner and ordered that his dismissal be permanent.
Appellee Collins then applied to one of the judges of the Pulaski circuit court for a writ of certiorari to bring the proceedings of the merit system council before that court for review, and on the hearing before the circuit court a judgment was rendered quashing the order of the merit system council, and an appeal has been duly prosecuted to this court.
On the hearing of the cause before the circuit court the record as made before the merit system council, including all the oral testimony adduced, was considered and parties permitted to introduce additional testimony.
The charges against Collins, as stated by him in his brief, are as follows:
John I. Hogue, who was supervisor of the Arkansas Merit System Council, testified in substance that the employment security division of the Department of Labor, the state Department of Public Welfare and the State Board of Health are agencies that the merit system applies to, and agencies to which the federal government contributes expenses and personnel. Witness became connected with the merit system on February 15, 1940. The council at that time had certain rules and regulations governing the operation of the district. A copy of the rules and regulations was then introduced in evidence. Witness does not know of any promotions or employment in the security division that have not been in keeping with the rules; that is, no formal promotions. A list of promotions was introduced in evidence, by agreement. Witness said it is not in keeping with the rules and regulations of the merit system to promote a person to a position that carries with it an increase in salary and at the same time require that person to divide the increase in salary with someone else who does not receive a promotion. If such a case had been called to witness' attention, he would have had to take an exception to it; does not recall when Wahlgreen and Neighbors were promoted or that there was any information coming to him as to an agreement whereby the one receiving a promotion and increase in salary was to turn over a portion of the increase to the other. Inasmuch as this practice of dividing the increase in salary of the one promoted is not in keeping with the merit system, it would probably have a tendency to destroy the merit system. If by agreement the party promoted is required to share the raise with someone else, then false records are made. The Commissioner of Labor is the one who actually appoints, promotes and raises salaries.
Ben C. Shipp, chief of the benefits section of the employment security division, testified that he had been with the agency all the time that the appellee had been director; knew that a poker game was carried on during the noon hour on the second floor of the agency; those participating in the game were employees of the agency, and the game was carried on openly; could have been seen by anyone on the second floor; during the game there would be onlookers; witness participated in the game once or twice; it was generally understood by the employees that appellee was a patron of the bookies and bet on the horse races; witness had seen racing forms on appellee's desk quite frequently during business hours. This witness also testified about Mrs. Wahlgreen and Mrs. Neighbors; that one of them received a promotion on condition that she split the increase in salary with the other; the bookie agent was frequently in conversation with Hicks.
A number of witnesses testified about the poker game and the betting on horse races, and the division of the increase in salary.
Witness Horace Wilson testified that he had been in appellee's office many times during business hours and had seen and heard Hicks and appellee discussing the races and studying racing forms. The poker games stopped shortly after the first of the year, but betting on horses continued, although not quite so openly. Witness had seen appellee and Hicks in appellee's office discussing racing and racing cards after the notice was posted prohibiting gambling; these discussions took place during business hours.
Randall Falk testified that in view of the circumstances he could not imagine that the appellee was not cognizant of racing forms being kept on the desk of his secretary.
Another witness, Marvin E. Clark, testified about the bookie agent and having seen racing sheets on the desk of appellee's secretary. He also testified that there was a general feeling among the employees that promotions were given to undeserving employees, and such views were the rule, and not the exception.
H. L. Lambert, cashier of the agency, testified that he has seen poker games in progress on the second floor a number of times, and had seen Delbert Plant, a bookie agent, in the offices of the agency almost daily for months.
C. W. Cobb, tabulating supervisor, testified that he had frequently seen poker games in progress; almost a daily occurrence; had seen the bookie agent with Hicks and racing sheets on Hicks' desk and had seen them on appellee's desk during business hours. The poker playing and horse race betting was carried on for about two months and the betting continued throughout the season at Hot Springs.
H. O. Arendt, an employee of the agency, testified that favoritism was in fact shown.
Marvin Clark, principal clerk in the contributions section testified among other things that upon instruction from the appellee an employer received credit for taxes which he supposedly paid to the agency. A check for nearly $ 1,000 was given the agency, which enabled the employer to receive credit, and the check was returned unpaid. Appellee instructed that the check of the employer be held up until April 30, 1941. In the meantime the agency had certified that the employer had paid his taxes, when as a matter of fact such...
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...where no other mode of review has been provided. Reed v. Bradford, 141 Ark. 201, 217 S.W. 11; State v. Nelson, supra; McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448. Petitioners argue that the circuit court was proceeding illegally. It can be argued, with some force, that the court's order......
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