Paddock v. Brisbois

• Decision Date: 09 April 1929
• Docket Number: Civil 2798
• Citation: 35 Ariz. 214,276 P. 325
• Parties: F. J. PADDOCK, Mayor; B. F. CARTER, JAMES A. GODWIN, WILLIAM ROER, C. L. MADDOX, Commissioners of the City of Phoenix, Maricopa County, Arizona; and CHARLES E. GRIGGS, City Manager of the City of Phoenix, Maricopa County, Arizona, Appellants, v. GEORGE O. BRISBOIS, JAMES H. ALLEN and EDWIN C. MOORE, Appellees
• Court: Arizona Supreme Court

276 P. 325

35 Ariz. 214

F. J. PADDOCK, Mayor; B. F. CARTER, JAMES A. GODWIN, WILLIAM ROER, C. L. MADDOX, Commissioners of the City of Phoenix, Maricopa County, Arizona; and CHARLES E. GRIGGS, City Manager of the City of Phoenix, Maricopa County, Arizona, Appellants, v. GEORGE O. BRISBOIS, JAMES H. ALLEN and EDWIN C. MOORE, Appellees

Civil No. 2798

Supreme Court of Arizona

April 9, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment reversed and complaint ordered dismissed.

Mr. C H. Young, City Attorney, Mr. L. M. Laney, Mr. Frank H. Lyman and Mr. E. S. Clark, for Appellants.

Mr Herman Lewkowitz, Mr. W. E. Ryan, and Mr. Louis B. Whitney for Appellees.

OPINION

ROSS, J.

This action grew out of the administration of the civil service of the city of Phoenix, and involves the construction of its charter, an ordinance passed under its charter, and the rules and regulations as formulated thereunder by the Civil Service Commission.

The appellees, George O. Brisbois, chief of police, James H. Allen, night captain of police, and Edwin C. Moore, desk sergeant and clerk of the police, were, on March 8, 1928, by written orders assigning reasons therefor, dismissed from the service by the city manager. They were all in the classified civil service, and accordingly demanded and were granted a hearing before the Civil Service Commission as its rules provided. The findings of the commission were that the grounds of discharge were not sustained, and that all of the appellees should be reinstated in their respective positions and be paid their back salaries. After such order, appellees reported for duty and were refused restoration.

They instituted separate actions in mandamus (afterwards consolidated) to compel the appellants (mayor, city commissioners, and city manager) to reinstate them and to pay their back salaries. The latter, by demurrer and by answer, challenged the validity of those provisions of the ordinance and the rules of the Civil Service Commission investing, or attempting to invest, the commission with the power to prevent the discharge, or to compel the re-employment with back pay of appellees.

On the hearing of the mandamus, it was shown that other persons had been appointed to fill the positions of chief of police, night captain of police, and desk sergeant and clerk of the police, who were performing the duties thereof and receiving the salaries. It was ruled by the lower court that the complaint stated a cause of action, and, there being no dispute as to the facts, judgment was entered directing the appellants to reinstate appellees and pay them their back salaries.

From this judgment this appeal is taken, and the error assigned is that the relief granted is not justified under the law and facts, for the reason that the power to discharge appellees is by the charter vested in the city manager, and the ordinance and rules of the Civil Service Commission, being in contravention thereof, are invalid and of no effect. The pertinent provisions of the charter are as follows:

"The city assessor, city collector, city engineer, chief of police, fire chief, superintendent of streets and such other officers as the commission may create by ordinance under the authority of this charter, shall be appointed by the city manager by and with the consent and approval of the commission." Section 7, chap. 3.

"Subject to the control of the commission, the manager shall have the general supervision and direction of the administrative operation of the city government; he shall supervise and direct the official conduct of all appointive city officers except the auditor, city attorney, city clerk, city treasurer and city magistrate; . . . he shall employ and discharge from time to time, as occasion requires all employees of the city appointed by him by and with the consent and approval of the commission; he shall appoint all officers of the city, the appointment or election of whom is not otherwise provided for in this charter, and may remove them when the interests of the city require. . . . (Italics ours.) Section 1, chap. 6.

"Section 1. The legislative powers of the city of Phoenix shall be vested in and exercised by the commission except as herein limited or reserved to the electors of the city. The legislative powers of the city shall extend to all rightful subjects of legislation not forbidden by the Constitution of the United States, the Constitution or laws of the state of Arizona, or the provisions of this charter.

"Section 2. As the legislative organ of the city of Phoenix, the commission, subject to the provisions and restrictions of this charter, shall have the power by proper ordinances or resolutions, to carry out each and every power, right and privilege herein and hereby vested in the city of Phoenix, and by such legislation to enforce said rights, powers and obligations, and to secure the performance of all obligations and indebtedness to others. And in addition to the powers hereinabove enumerated and referred to, the city, and the commission acting for and in its behalf, shall have the further powers hereinafter enumerated and set forth, to wit: . . .

"(58) To establish a park board, playground board, board of public charities, and such other boards as they deem advisable, and to appoint members thereon, to serve without compensation, with such powers and duties as may be fixed by the commission; also to establish a civil service board and prescribe its duties." Chapter 4.

In pursuance of the authority conferred by subdivision 58 of section 2, chapter 4, supra, in May, 1924, an ordinance was passed by the city commission, and upon submission to the people approved by a majority vote, establishing a Civil Service Commission and prescribing its duties. The ordinance provided that the Civil Service Commission should prescribe and enforce a rule (among others) for the city's classified service, which should have the force and effect of law after approval thereof by the city commission, as follows:

"For discharge or reduction in rank or compensation after appointment or promotion is complete only after the person to be discharged or reduced has been presented with the reason for such discharge or reduction, and has been allowed a reasonable time to reply thereto in writing." Subsection 12, § 3, Ordinance No. 715.

The rules formulated by the Civil Service Commission under this provision of the ordinance required that all removals for cause should be referred to said commission and that "no employee in the classified service shall be discharged or reduced in pay or position, except for just cause. Further, no such employee shall be discharged or reduced, until he shall have been furnished with a written statement of the reasons for such action and been allowed to give the removing officer such written answer within five days as the person sought to be removed may desire." Paragraph 3, Rule 14.

A hearing by the commission of the charges and the answer thereto is provided for, and when the finding and decision of the commission thereon is certified to the appointing officer or authority, it is made the duty of such officer or authority to enforce it.

There can be no question of the power of the city commission to establish by ordinance a Civil Service Commission and prescribe its duties, that power being conferred by subdivision 58, section 2, chapter 4 of the charter, supra. But does this power extend to taking from, or authorize the Civil Service Commission to take from, officers of the city powers vested in them by the charter and the conferring of such powers on others? In other words, the charter having conferred the power of appointing and removing officers and employees of the city in the city manager, can the city commission, under the authority of said subdivision 58, establish a Civil Service Commission and confer on it the power to defeat the city manager's charter powers of dismissal, by requiring him to obtain the consent of the Civil Service Commission before exercising such power?

We are of the opinion that the ordinance establishing the Civil Service Commission and the rules formulated thereunder, so far as they under to deprive the city manager of the power to dismiss officers and employees that the charter empowers him to discharge, assume a power not delegated by the charter to the city commission. Nor do we think the fact that the ordinance was submitted to and approved by the qualified electors of the city adds to its force or validity. The general legislative power of the city, whether exercised by the city commission or by the qualified electors under the initiative and referendum, is the same.

The form of government of an incorporated city is analogous to that of the state. Like the state it has a Constitution, only it is called a charter. It has three departments legislative, executive and judicial, as does the state. A state Constitution, however, is a limitation of power, whereas a charter of a city, like the federal Constitution, is a grant of power. The organs through which the state...