State Civil Service Com'n of Colorado v. Cummings

• Decision Date: 12 March 1928
• Docket Number: 12015.
• Parties: STATE CIVIL SERVICE COMMISSION OF COLORADO v. CUMMINGS.
• Court: Colorado Supreme Court

265 P. 687

83 Colo. 379

STATE CIVIL SERVICE COMMISSION OF COLORADO v. CUMMINGS.

No. 12015.

Supreme Court of Colorado, En Banc.

March 12, 1928

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Certiorari by Barnard Cummings against the State Civil Service Commission. Decree for petitioner, and respondent brings error.

Reversed and remanded, with instructions.

Wm. L. Boatright, Atty. Gen., and Jean S Breitenstein, Asst. Atty. Gen., for plaintiff in error.

H. A Lindsley, of Denver, for defendant in error.

CAMPBELL J.

On the petition of Barnard Cummings, who had been, with approval of the state civil service commission, serving and acting, in the capacity of a provisional appointee, as assistant commissioner of securities under the secretary of state, the district court awarded him a writ of certiorari to review an order of the commission terminationg his employment. The respondent board's motion to quash the writ, based principally on laches of the petitioner, and that certiorari is not the proper remedy, was denied and the respondent then filed its return containing a complete transcript of all of its proceedings concerning the termination of the petitioner's appointment and the approval of the appointment of R. T. Wilson as his successor together with all letters, depositions, evidence, etc., on file in any way affecting its action complained of, together with a copy of its rules and regulations. No answer or reply to the return was filed. No oral testimony was heard, though respondent offered to produce evidence, which the court refused to hear because it was at variance with the return. No assignment of error is made to this ruling. The findings and decree were based solely on the record. What the court denominates as findings are thus set forth in its decree: (1) That the petitioner was not legally discharged by the commission and his office or employment was not legally terminated; (2) that the commission did not proceed according to its rules and regulations or observe the proper procedure for terminating a provisional appointement; (3) that the petitioner was not given by the commission a hearing and no proper order was entered by it discharging him; (4) that the commission failed as a board to take the necessary and proper action required in such cases; (5) that the court specifically finds as the result of such void action and conclusion of the commission that the petitioner is now, and at all times since January 31, 1927, has been, the sole assistant commissioner of securities, and is now such employee. The decree upon these findings, in substance, is (1) that the attempted removal or relieving petitioner from duty is null and void; (2) that the petitioner is, and ever since January 31, 1927, has been, the assistant commissioner of securities at the salary of $150 per month, and is now such commissioner until removed according to law; (3) making permanent the mandatory order contained in the writ of certiorari suspending and staying all action in the premises until petitioner shall be, if at all, removed from the office or employment in accordance with law and the rules and regulations of the commission; (4) the commission is commanded and enjoined to certify upon its next pay roll or upon its special pay roll the name of the commissioner Cummings, as assistant commissioner of securities from and including February 1, 1927, until the date of this judgment; (5) costs against the respondent are awarded.

We think the decree is manifestly wrong and must be set aside for the following, among other, reasons:

(1) The petitioner has mistaken his remedy. Certiorari is an extraordinary remedy, and, even in cases where it lies, the writ will not issue if some other adequate remedy exists, and it is restricted to jurisdictional matters. State Medical Board v. Spears, 79 Colo. 588, 247 P. 563. Nisbet v. Frincke, 66 Colo. 1, 179 P. 867, was a mandamus proceeding in which an officer or employee of the civil service had been removed or relieved. In reply to the contention there that mandamus was not the proper remedy for restoring to office or employment, the court, speaking through Mr. Justice Scott, said:

'It is, however, strenuously argued that mandamus is not the proper remedy, and that the proceeding should have been by certiorari. Under our Civil Code, certiorari is an extraordinary legal remedy. It lies where a tribunal exercising judicial functions exceeds its jurisdiction or greatly abuses its discretion. * * *

'The official acts of a civil service commission in executing the commands of the statute are not judicial, in the technical sense; they are executive and ministerial in their nature, and therefore are to be reached, when they actually become the subject of judicial inquiry, by way of mandamus. 5 R.C.L. 617.

'It was formerly held that the acts of such a commission were in their nature judicial. But this view has been generally repudiated. * * * The writ of mandamus has been used for the specific purpose of reinstatement. People v. Brady, 262 Ill. 580, 105 N.E. 1, and by this court in Sowers v. Pitcher , 165 P. 253.'

The case in hand is one by a provisional appointee in the civil service for reinstatement to the office or employment in question from which it is alleged he was removed. The Nisbet Case declares that mandamus, and not certiorari, is the appropriate remedy. This decision has been followed or recognized in People ex rel. Riordan v. Hersey, 69 Colo. 492, 196 P. 180, 14 A.L.R. 631; People ex rel. Fisher v. Luxford, 71 Colo. 442, 207 P. 477; Board of Capital Managers v. Rusan, 72 Colo. 197, 210 P. 328; People ex rel. Kelly v. Milliken, 74 Colo. 456, 223 P. 40; Lee v. Morley, 79 Colo. 481, 247 P. 178. See, also, 5 R.C.L. 263. The district court should have sustained the respondent's motion to quash because certiorari was not the proper remedy.

(2) The respondent also says that the writ should have been quashed because, for a period of 4 1/2 months after the action of the board, petitioner took no steps whatever to question its ruling. In 11 C.J. p. 146,§ 133, it is said that the writ of certiorari must be applied for within a reasonable time, or the same will be refused or dismissed if improvidently issued; and at page 186, § 309, that, where the applicant for the writ has been guilty of unreasonable delay in suing out the writ, it will be quashed; and at page 148, § 138, that objections to the proceedings, because not instituted within the time limit, should be taken by motion to dismiss or to quash. And the court itself may raise the question. People v. District Court, 28 Colo. 218. ^[1] Respondent says that, during the period that the petitioner refrained after the removal from questioning the authority of the commission, the petitioner's successor in office has been discharging its duties and is being paid by the state. Since we have held that certiorari is not the appropriate remedy, it is not necessary to determine whether or not the petitioner was guilty of laches.

(3) In a series of cases, beginning with Shinn v. People, 59 Colo 509, 149 P. 623, this court has consistently held that the safeguards and provisions of the civil service laws are for the protection only of those who have taken an examination and...