Smith v. Little Rock Civil Service Commission

• Decision Date: 07 March 1949
• Docket Number: 4-8819
• Citation: 218 S.W.2d 366,214 Ark. 765
• Parties: Smith v. Little Rock Civil Service Commission
• Court: Arkansas Supreme Court

218 S.W.2d 366

214 Ark. 765

Smith v. Little Rock Civil Service Commission

No. 4-8819

Supreme Court of Arkansas

March 7, 1949

Rehearing Denied April 4, 1949.

Appeal from Pulaski Chancery Court, First Division; Frank H. Dodge Chancellor.

Affirmed.

James I. Teague, for appellant.

Floyd Terral and T. J. Gentry, for appellee.

OPINION

George Rose Smith, J.

This is a representative suit filed by Smith and Glasscock, members of the Little Rock police force, on behalf of all Little Rock policemen whose employment was interrupted by service in the armed forces during World War II. The complaint asserts that the Little Rock Civil Service Commission denied returning veterans the civil service status to which they were entitled by law. This appeal is from a decree sustaining a demurrer to the complaint and dismissing the action.

I. The appellants ask first that the appellees Baird, Eubanks and Gamble -- the three members of the Commission -- be permanently enjoined from acting as commissioners. Appellants contend that each of these appellees is disqualified from retaining his post by reason of the fact that they each occupy another public office, contrary to governing statutes. The theory is that Act 28 of 1933 (Ark. Stats. [1947], §§ 19-1601 -- 19-1618) authorized cities of the first class to create a civil service commission having jurisdiction over policemen and firemen only, while Act 322 of 1937 (Ibid., §§ 19-1301 -- 19-1317) empowered cities having more than 75,000 in population to create a second civil service commission for city employees other than firemen and policemen. Both statutes provide that the commissioners may not hold any other public office. Appellants allege that these three men have been named as members of both commissions, so that the occupancy of either position disqualifies them from holding the other. The appellees' answer is that the 1937 Act was intended to amend the earlier statute, by authorizing a single commission for all municipal employees in cities of the specified population.

The chancellor correctly sustained the demurrer to this part of the complaint. Even if appellants' construction of the statute were approved, the supposed disqualification would not affect the status of these appellees as de facto commissioners. And chancery is not the proper forum in which to decide whether they are also de jure officers. "Equity has no inherent power to oust an incumbent whose title to the office has been forfeited by misconduct or other causes." Gladish v. Lovewell, 95 Ark. 618, 130 S.W. 579. The remedy in such cases is by appropriate action in the circuit court. State v. Sams, 81 Ark. 39, 98 S.W. 955. We need not speculate upon the possibility of a taxpayer's action -- which this is not -- to restrain the payment of illegal salaries; for the 1933 Act directs that the commissioners serve without compensation.

II. The principal controversy concerns the treatment accorded by the Commission to returning veterans. At this point we must outline the civil service procedure in order to state the contentions of the litigants. The statute contemplates that civil service promotions will be made pursuant to eligibility lists based on periodic competitive examinations. After each examination a new list is prepared, the contestants being ranked according to their grades. Whenever a vacancy in a civil service position occurs, the employee who stands first on the eligibility list for that position is entitled to the appointment. Thus a favorable position on the list is a condition to promotion.

Smith asserts that when he entered the military service on October 3, 1942, he ranked first on the roster for promotion from patrolman to detective sergeant. A vacancy then existed in the grade of detective sergeant, but some one else was appointed after Smith's departure. When Smith returned to the police department on January 23, 1946, the Commission refused to give him a place on the current eligibility list. Instead, he was compelled to wait until the next examination, which he took and so established his position on the succeeding list.

We find no merit in the contention that Smith should have been promoted to the position that was vacant when he entered the service -- even though the Commission's regulations make appointments retroactive to the inception of the vacancy. We must assume that the commissioners had reasonable cause for not making the appointment before Smith's entry into the service. Thereafter he was not present to perform the duties of the position, and, as we shall see, his status was suspended until his return to civilian duty. Consequently the commissioners properly promoted the patrolman who had progressed to the head of the list by reason of Smith's absence.

Nor can we agree with Smith's contention that upon his return he should have been recognized as an applicant for the higher grade of lieutenant. He alleges that he then took this examination, while he was a patrolman, but the Commission disregarded his participation. A sufficient answer is that Smith had not served for a year in the intermediate grade of sergeant, as the statute requires. Ark. Stats. (1947), § 19-1603.

We think, however, that the Commission was wrong in refusing to restore Smith to the eligibility list when he came back in 1946. Federal, State and municipal legislation must be considered in the determination of his rights as a returning service man. First, the Selective Service Act (USCA, Title 50 App., § 308) had stated as the sense of Congress that State and municipal employees should be restored to their former positions or to others of "like seniority, status, and pay." By Act 247 of 1943, § 13 (Ark. Stats. [1947], § 12-2313), the Arkansas legislature declared that this provision should be applicable to public employees in this State. (This Arkansas statute was not called to our attention in McLaughlin, Trustee, v. Retherford, 207 Ark. 1094, 184 S.W.2d 461, where we stated that the federal act did not apply to public employees in this State.)

Second this same 1943 statute undertook to preserve the civil service status of public...