State ex rel. Furlong v. McColl

• Court: Minnesota Supreme Court
• Writing for the Court: HALLAM
• Citation: State ex rel. Furlong v. McColl, 127 Minn. 155, 149 N.W. 11 (Minn. 1914)
• Decision Date: 09 October 1914
• Docket Number: No. 19066 [298].,19066 [298].
• Parties: STATE ex rel. FURLONG v. McCOLL et al.

127 Minn. 155

149 N.W. 11

STATE ex rel. FURLONG

v.McCOLL et al.

No. 19066 [298].

Supreme Court of Minnesota.

Oct. 9, 1914.

Certiorari by the State, on the relation of James M. Furlong, to review the action of Henry McColl, as Councilman and Commissioner of Public Safety of the City of St. Paul, Minn., and the City of St. Paul, in dismissing relator from the police force. From judgment for defendants, relator brings certiorari. Reversed.

Syllabus by the Court

The St. Paul City charter, by amendment effective June 1, 1914, gives to heads of departments the right to remove subordinates by the methods prescribed in the chapter on Civil Service. This provision restricts the right of removal inherent in the power to appoint, and there is no right of removal except upon compliance with the requirements of the civil service chapter.

The amended charter contains a chapter regulating what is known as the classified civil service, provides that appointments to positions in the classified service shall be based on merit, and provides that the comptroller shall frame rules subject to the approval of the council, which rules shall provide ‘for discharge * * * only where the person discharged * * * has been presented with the reasons for such discharge * * * specifically stated in writing, and has been allowed a reasonable time to reply thereto in writing.’ This provision is self-executing, and it became operative when the amended charter went into effect.

This provision does not contemplate that the officer sought to be removed shall be accorded a formal trial, but it does contemplate that removals shall only be for some cause touching the fitness and qualifications of the officer to discharge the duties of the office. The cause is to be determined by the removing officer, and his determination is quasi judicial, and may be reviewed on certiorari. The fact that the removing officer does not assume to proceed under the provisions which the charter required him to follow does not alter the case. The writ lies even if the action was arbitrary and without jurisdiction and void.

The amended charter provides that: ‘All persons holding positions in the classified service of the city as established by this charter, at the time it takes effect, shall retain their positions until discharged, reduced, promoted or transferred in accordance therewith.’ Under this provision the right of the relator to hold his office is confirmed, and it cannot be urged against his right to contest an irregular removal that he was over age when appointed. Loomis & Keller, of St. Paul, for relator.

O. H. O'Neill, of St. Paul, for respondents.

HALLAM, J.

Certiorari to review the action of the commissioner of public safety of the city of St. Paul in dismissing relator from the police force. The St. Paul charter in its present amended form went into effect June 1, 1914. The commissioner of public safety is the head of the police department. Relator was a lieutenant of police when the amended charter went into effect. On August 4, 1914, the commissioner undertook to remove the relator by sending him a written notice in the following terms:

‘You are hereby notified that on this day you are removed, to take effect the 5th day of August, 1914, from the police department of this city for incompetency and inefficiency.’

This attempted removal was ineffective.

The charter contains a chapter regulating the ‘civil service’ and dividing the civil service of the city into classified and unclassified. The classified service includes relator. The charter provides that:

‘All persons holding positions in the classified service of the city as established by this charter, at the time it takes effect, shall retain their positions until discharged, reduced, promoted or transferred in accordance therewith.’ Section 104.

It then provides that:

‘All heads of departments having the power of appointing assistants, subordinates or employés shall have power to remove said officers under the resolutions and by the methods provided in the chapter on Civil Service.’ Section 477.

Section 101 makes the city comptroller civil service commissioner, and he is authorized to frame rules and regulations for the classified service, to be approved by the common council. It provides numerous things which the rules must contain; among others they must provide:

‘For discharge or reduction, either in rank or compensation, after appointment or promotion, only where the person to be discharged or reduced has been presented with the reasons for such discharge or reduction, specifically stated in writing, and has been allowed a reasonable time to reply thereto in writing. The reasons and the reply must be filed as a public record with the commissioner.’ Subdivision ‘L.’

[1] No rules had been framed when this alleged removal was made. Respondent commissioner contends that until such rules were framed and approved the provisions of the civil service chapter were wholly inoperative, and that the commissioner possessed in the meantime an unrestricted power of removal as incident to his power to appoint. It may be conceded that the power of removal is an incident of the power to appoint unless it be otherwise provided. Parish v. City of St. Paul, 84 Minn. 426, 87 N. W. 1124,87 Am. St. Rep. 374. But this charter does otherwise provide, for here the power of removal has been in terms denied the commissioner, except in accordance with the civil service chapter. If that chapter has not become operative, the power of removal does not exist at all.

[2] We think, however, that subdivision ‘L’ of the civil service chapter became operative regardless of the adoption of rules; in other words, that the provisions of subdivision ‘L’ are self-executing and were operative as soon as the amended charter went into effect.

Much has been written in effort to furnish a test by which to determine whether constitutions and charters imposing limitations and conditions upon legislation are self-executing. No test easy of application has yet been furnished. Whether a provision is self-executing must be determined from a consideration both of the language used and of the intrinsic nature of the provision itself. In general, it is said that prohibitory provisions in a constitution or charter are usually self-executing to the extent that anything done in violation of them is void; so is any provision that indicates that it was intended as a present enactment, complete in itself as definitive legislation not contemplating subsequent legislation to carry it into effect. It is not important that other legislation may be contemplated to supplement it. If the provision is to be operative at all events and the nature and extent of the rights conferred and the liabilities imposed are fixed by it, so that they can be determined by examination and construction of its terms, and the provision itself furnishes a complete working rule of conduct, it will be held self-executing, and the legislative authority will not be required to go through the perfunctory process of passing it in order to give it vitality. See Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110,16 L. R. A. 281, 31 Am. St. Rep. 626;Cleary v. Kincaid, 23 Idaho, 789, 131 Pac. 1117. In People ex rel. McClalland v. Roberts, 148 N. Y. 360, 42 N. E. 1082,31 L. R. A. 399, it was held that a constitutional provision requiring appointments to be made according to merit and fitness, to be ascertained, so far as practical, by competitive examinations, and providing that ‘laws shall be made to provide for the enforcement of this section,’ was held self-executing, and it was said:

‘If the Legislature should repeal all the statutes and regulations on the subject of appointments in the civil service, the mandate of the Constitution would still remain and would so far execute itself as to require the courts, in a proper case, to pronounce appointments made without compliance with its requirements illegal.’

The matter may not be free from...