Reading v. Quintel, Civil 3626

• Decision Date: 16 December 1935
• Docket Number: Civil 3626
• Parties: EDWARD READING, JOE RICE and WM. A. BAKER, Composing the Civil Service Board of the City of Phoenix, and v. R. QUINTEL, Secretary of the Civil Service Board of the City of Phoenix, Appellants, v. E. J. MAXWELL, Appellee
• Court: Arizona Supreme Court

52 P.2d 1155

46 Ariz. 500

EDWARD READING, JOE RICE and WM. A. BAKER, Composing the Civil Service Board of the City of Phoenix, and v. R. QUINTEL, Secretary of the Civil Service Board of the City of Phoenix, Appellants, v. E. J. MAXWELL, Appellee

Civil No. 3626

Supreme Court of Arizona

December 16, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Reversed and remanded with directions.

Mr Herman Lewkowitz and Mr. Hess Seaman, for Appellants.

Messrs Struckmeyer & Jennings, for Appellee.

OPINION

ROSS, J.

The plaintiff, E. J. Maxwell, seeks by mandamus to compel the defendants Edward Reading, Joe Rice and Wm. A Baker, composing the civil service board of the city of Phoenix, and V. R. Quintel, secretary of such board, to certify that his "status is that of clerk in the (city) water department" and to determine his seniority. The parties stipulated the facts and, upon such facts and the pleadings, the court rendered judgment for plaintiff making the alternative writ peremptory. The defendants have appealed from the judgment for the reason, as they assert, that it is not supported by the law or the facts.

The stipulated facts are, in substance, as follows: On March 1, 1933, plaintiff was given temporary employment as is shown by the following writing:

"Report of Emergency Appointment.

"Civil Service Commission:

"Date March 5, 1933.

"Owing to the emergency stated in detail below E. J Maxwell -- 2326 N. 10th Street, was appointed by me on March 1, 1933 to the position of Clerk in the Department of Water to perform the following work: at pay of $160.00 per Mo. Details of Emergency: Checking Services to correct records Temporary employment."

This notice of appointment was made on a printed form and we have italicized the written part thereof. Under such appointment, plaintiff worked for the city in the capacity of clerk in the water department until May 15, 1933, and thereafter as a draftsman in the water department, and did some checking of meters in that department until July 16, 1934, when at his request, he was transferred from the water department to the position of draftsman in the street railway department, with the approval of the city manager, city engineer and civil service board.

During plaintiff's employment as a draftsman in the water department, he requested two leaves of absence from his regular duties, which were approved by the city engineer and the secretary of the civil service board.

The position of draftsman in the city water department, as also in the street railway department, falls within the classified service and no one is eligible thereto except upon passing the competitive examination.

On August 10, 1934, while plaintiff was working as a draftsman in the street railway department, the city commission of Phoenix abolished that position. Thereafter plaintiff requested a hearing before the civil service board to have determined his status in the classified service. A hearing was held and the decision of the board was that the plaintiff's status was:

"that of temporary draftsman in the Water Department; his status being temporary for the reason that this is a competitive classification and no permanent appointment can be made (since May 1, 1933) without examination."

Whether the action of the civil service board, in refusing to give plaintiff the classified status of a clerk in the city's water department, was correct is the question to be decided.

In May, 1924, civil service was adopted by the city of Phoenix. The charter of the city at that time lodged in the city manager the power to appoint and discharge all the city officers (with some exceptions) and all employees. Ordinance No. 715, passed by the city commission and approved at an election by the voters of the city in 1924, created the civil service commission and gave it power to classify the city's civil service, to hold competitive examinations, and certify eligible lists from which appointments were to be made. It also provided for the discharge of employees, hearings, etc.

On April 9, 1929, in the case of Paddock v. Brisbois, 35 Ariz. 214, 276 P. 325, we held that since the power to employ and discharge the civil service employees of the city was by the charter lodged in the city manager, the right could not be taken from him by ordinance, but only by amending the charter. No steps were taken towards amending the charter or Ordinance 715 until on April 3, 1933, when an amendment to the charter was submitted to the voters and by them approved authorizing the city to provide for a civil service board and to delegate to this board "the power to regulate and control appointments, demotions, discharges and reinstatements of any or all officers and employees of the city except," etc. Thereafter Ordinance 715 was amended, effective May 1, 1933, to conform with the amended charter. In the interim, from April 9, 1929, when the decision in the Brisbois case, supra, was rendered, to May 1, 1933, the city continued to operate under the civil service as established in 1924 and plaintiff received his appointment to temporary employment under the provisions of Ordinance 715 as originally passed. Rule 8, adopted in 1924 by the civil service commission, reads as follows:

"Provisional and Temporary Appointments.

"1. Provisional and temporary appointments shall be made only as provided in section three, subsection eight, of Ordinance number 715, which provides: Sub-Section Eight. 'For temporary employment without examination, with the consent of the Commission, in cases of emergency and pending...