Reherd v. Manders

• Decision Date: 18 March 1946
• Docket Number: No. A—4011.,A—4011.
• Citation: 66 F. Supp. 520
• Parties: REHERD v. MANDERS, Mayor.
• Court: U.S. District Court — District of Alaska

66 F. Supp. 520

REHERD v. MANDERS, Mayor.

No. A—4011.

District Court of Alaska, Third Division. Anchorage.

March 18, 1946.

Edward L. Arnell, of Anchorage, for petitioner.

Edward V. Davis, of Anchorage, for respondent.

DIMOND, District Judge.

Harold M. Reherd, the petitioner in this proceeding, sought an alternative writ of mandamus against John Manders, Mayor of the City of Anchorage, respondent herein, to require the respondent to sign, as Mayor, Warrant No. 2752 of the city's warrants, issued in payment of the salary, or compensation, of the petitioner as City Engineer for the period between September 18 and November 30, 1945, inclusive, or that respondent show cause why he should not sign the warrant mentioned. The alternative writ was, upon order of the Court, duly issued and served.

It satisfactorily appears from the petition and from the writ, that during all of the period of time involved in the proceeding, the respondent was, and he now is, Mayor of the City of Anchorage; that on May 10, 1945, the respondent appointed the petitioner to the office of City Engineer of said City, and that on the same day the City Council of the City duly and regularly confirmed such appointment; that on that day the petitioner assumed the duties of the office of City Engineer of Anchorage and continued to hold said office and perform the duties incident thereto up until the present time and that the salary covered by said warrant was due and owing from the City to the petitioner by virtue of the performance by the petitioner of his duties as City Engineer of the City of Anchorage for the period above mentioned; that on December 6, 1945, the City Council of the City of Anchorage duly and regularly ordered the issuance of said Warrant No. 2570 in payment of the compensation for services of the petitioner as City Engineer for the period between September 18 and November 30, 1945, inclusive; that the said warrant was duly and regularly issued in that it was prepared by the City Clerk and signed, in accordance with established custom and practice, by two members of the Finance Committee of said Common Council, and was presented to the respondent Mayor for his signature, but that the respondent declined and refused to sign the warrant.

After preliminary proceedings of no present relevancy, the respondent made answer to the alternative writ, the material averments of which are quoted below:

"I That petitioner was, on the 10th day of May, 1945, appointed and confirmed as City Engineer of the City of Anchorage, but that as respondent is informed and believes and so alleges the fact to be, petitioner has not at anytime made or subscribed or filed the oath of office required by law by the ordinances of the City of Anchorage, and for that reason petitioner is not entitled to draw salary as City Engineer of the City of Anchorage, Alaska.

"II That respondent is and at all times mentioned in petitioner's pleadings and in the Writ of Mandate has been, the duty elected, qualified and acting Mayor of the City of Anchorage, Alaska.

"III That under and by virtue of the laws of the Territory of Alaska respondent, as Mayor of the City of Anchorage, has the duty among other things, to direct and supervise the business of the City to see that all ordinances and resolves are executed and has general supervision of the affairs of the City. That under and by virtue of the ordinances of the City of Anchorage, respondent, as Mayor, has general supervision over the affairs of the City and department heads and other city officers are to make such reports and at such times as may be required of them by your respondent as Mayor.

"IV That the petitioner in this action has been acting as an officer and a department head of the City of Anchorage and is subject to the supervision of the respondent, as Mayor.

"V That on or about the 17th day of September, 1945 your respondent, as Mayor of the City of Anchorage, ordered the petitioner to do certain work in connection with petitioner's employment by the City of Anchorage, which work was within the scope of the duties of petitioner and was within petitioner's power to execute and that petitioner refused to do such work. That thereupon petitioner was notified by your respondent, as Mayor, that petitioner would not be paid any further salary by the City of Anchorage until he complied with the lawful orders of your respondent, as Mayor. That petitioner then refused and still refuses to execute the lawful orders of your respondent, as Mayor.

"VI That petitioner, as City Engineer and head of the street department, without authority from the Common Council or your respondent, expended funds greatly in excess of the amount budgeted for the department for the years 1945-46 so that such funds are exhausted and overdrawn.

"VII That as your respondent is informed and believes and so alleges the fact to be, petitioner is not a professional engineer as required by law and is not entitled to receive compensation as an engineer.

"VIII That your respondent's duty to sign orders upon the City Treasurer is not mandatory and respondent has no absolute duty to sign the warrant here in question.

"IX That petitioner has a plain, speedy and adequate remedy at law in this matter in that, if any money is owed him by the City of Anchorage, he may collect the same by action against the City of Anchorage and in such action the amount of money due to the petitioner, if any, may be ascertained."

In his reply to the respondent's answer, the petitioner admitted that he had not taken oath of office as City Engineer but denied that such oath is required by law and denied that failure to take an oath deprived him of his right to receive compensation as City Engineer; admitted that he had been acting as an officer and department head of the City of Anchorage but denied that he was subject to the supervision of respondent; admitted the allegations contained in Paragraphs II and III of the respondent's answer, and denied the allegations contained in Paragraphs V, VI, VII, VIII and IX thereof.

On the issues thus joined, trial was had and evidence adduced. In the trial the respondent put in evidence carbon copy of a letter dated September 18, 1945, addressed by him to the petitioner in which the respondent advised the petitioner that he did not intend to sign any warrant for any compensation or salary due the petitioner from the City of Anchorage, and gave as reason the failure of the petitioner to carry out the respondent's directions to wash a certain street in said City. The letter reads as follows:

"September 18, 1945 "Mr. H. A. Reherd "City Engineer's Office "Anchorage, Alaska

"Dear Sir:

"Recently on two occasions, and again on Monday, the 17th inst., I directed you to use the facilities of the city of Anchorage for the purpose of washing Fourth Avenue, including the street and sidewalks from C Street to K Street.

"This you have failed to do as directed by me, and this is to advise you that I will not sign any warrant for any compensation or salary that may be due you from the city of Anchorage by reason of your failure to carry out my directions to you.

"Yours very truly JEM:flh Mayor"

The following quoted excerpt from the testimony of the respondent indicates clearly that the only reason why the respondent refused to sign the warrant was because of the respondent's claim that the petitioner, as City Engineer, had refused to obey the respondent's order to wash Fourth Avenue of the City of Anchorage:

"Q. (By Mr. Arnell, on cross examination) Now, Mr. Manders, in the second paragraph of your letter you state that because of Mr. Reherd's failure to do certain things directed by you, you will thereafter not sign any warrant in compensation of his salary? A. That is correct.

"Q. Is that the only reason you have for refusing to sign his warrant? A. For refusing to sign Reherd's warrants?

"Q. Yes. A. That is the only reason, his failure to clean the streets of the City after I had asked him to do it; in fact, for a period of time, there, there were warrants for money earned prior to that date which I didn't sign, and I considered that, and I felt I had no right to hold up any warrants up to that date and I signed all of them.

"Q. And you still hold that position, regardless of the fact that a valid warrant has since been issued? A. I still hold that same position."

However, the testimony given by the petitioner and others at the trial indicates by a clear preponderance of the evidence, in fact, beyond reasonable doubt, that the petitioner did cause Fourth Avenue to be washed in sincere, if somewhat belated, attempt to follow the respondent's order, but that probably the completed work was not satisfactory to respondent because of the condition of the pavement of said street, for one of the witnesses testified that the use of water to clean the street under greater force than was used would have torn up, or damaged, the black top surfacing of a portion, or all, of the street.

It appears conclusively from the testimony that the petitioner has faithfully and adequately performed his duties as City Engineer and has not been guilty of any fault or dereliction which would justify suspension of his salary or any other disciplinary or retributive action.

While it is true that the Mayor, in his return to the writ, avers that the petitioner is not a professional engineer and "is not entitled to receive compensation as an engineer," that assertion is irrelevant because it was the duty of the respondent, as Mayor, to investigate the qualifications of the petitioner before the latter's appointment to the Office of City Engineer and, moreover, there is no requirement of law that a City Engineer shall be what the respondent phrases in his answer to the writ as a "professional engineer," or even, perhaps, that he be able to distinguish between a bulldozer and a clinometer. The petitioner was appointed by the Mayor and confirmed...