Roark v. State

• Decision Date: 09 January 1933
• Citation: 107 Fla. 659,145 So. 867
• Parties: ROARK, City Manager, et al. v. STATE ex rel. WATERS.
• Court: Florida Supreme Court

145 So. 867

107 Fla. 659

ROARK, City Manager, et al. v. STATE ex rel. WATERS.

Florida Supreme Court

January 9, 1933

Rehearing Denied Feb. 7, 1933.

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Mandamus by the State, on the relation of W. L. Waters, against George J. Roark and others to compel respondent named, as City Manager of the City of Pensacola, to cause the relator to be reinstated in his employment as a watchman in the service of the city, and for other relief. To review a judgment whereby a peremptory writ issued, the respondents bring error.

Affirmed.

COUNSEL J. J. Sullivan, of Pensacola, for plaintiffs in error.

John M Coe, of Pensacola, for defendant in error.

OPINION

BUFORD C.J.

Defendant in error procured alternative writ of mandamus in the circuit court of Escambia county in which it was ordered:

'That the Respondent George J. Roark do cause the Relator W. L Waters to be reinstated in his employment as watchman in the service of the City of Pensacola as of Sept. 21, 1931 and do cause to be paid to him his compensation as such watchman and that the respondent T. C. Finch as Comptroller do issue a warrant on the City Treasury for compensation due to said W. L. Waters at the rate prescribed by law for his rank and grade of employment as above set forth covering the period from Sept. 21, 1931 to the date of his reinstatement as commanded by this writ and that the respondent George J. Roark do countersign the same; and that the respondents Al James, C. A. Weis and W. B. James, do cause the name of W. L. Waters to be included in the list of persons in the classified service of the City showing in connection with his name, position held, salary and wages paid the date and character of his appointment as hereinbefore set forth or that they show cause by the 15th day of March A. D. 1932 why they have not obeyed this writ.'

The writ was amended so that it alleged:

'That your relator is a citizen and resident of the City of Pensacola, Escambia County, Florida, over the age of 21 years and heretofore towit on October 12, 1929, entered the service of the City of Pensacola as a night watchman having theretofore been in the service of the said City as a patrolman on the police force and from said date remained continuously in the service of the said city in said position of watchman as an employee subordinate to the Chief of Police of the City of Pensacola until September 21, 1931, at a salary of $100.00 per month and thereby became entitled under the provisions of section 90 and section 90 1/2 of chapter 15425 Laws of Florida, to retain said position until discharged, reduced, promoted or transferred in accordance with the provisions of the said chapter.'

Return was made to the original writ and also to the amended writ. Testimony was taken and peremptory writ issued following the commands of the alternative writ.

Chapter 15425, Special Acts of 1931, is the legislative charter of the city of Pensacola. Chapter 15427 is an act to supplement the charter of the city of Pensacola. Section 90 1/2 of chapter 15425 provides as follows:

'All persons not provided for in Section 90 holding positions in the city pursuant to appointment from eligible lists, or who have been continuously in the service of the city in the same position for one year preceding the adoption of this charter, shall retain their positions until discharged, reduced, promoted or transferred in accordance with the provisions of this charter. Employees of any public utility at the time of its acquisition, shall be deemed to hold their positions as though appointed under the Civil Service provisions of this charter; but vacancies thereafter occurring in such service shall be filled from eligible lists in the manner herein provided. That all employees of the city who may have been discharged, demoted, reduced or suspended between the enactment of this charter by the Legislature of the State of Florida and the installation of the officers and government provided for in this Act, shall be entitled to have the case reviewed by the Board of Civil Service de novo and the said Board of Civil Service shall have the right and authority to set aside any action in said cause and reinstate said employee to his employment and/or office.'

The return of the respondents contained the following averments:

'These respondents deny that the relator from October 12, 1929, remained continuously in the service of the said City in said position of watchman as an employee subordinate to the Chief of Police of the City of Pensacola until September 21, 1931.

'Respondents aver that on October 12, 1929, when the relator entered the service of the Municipal Dock as Watchman in the department of...