State ex rel. Kruse v. Webster

• Decision Date: 02 June 1950
• Docket Number: No. 35156,35156
• Citation: 43 N.W.2d 116,231 Minn. 309
• Court: Minnesota Supreme Court
• Parties: STATE ex rel. KRUSE v. WEBSTER et al. (BRENNER, Intervenor).

Page 116

43 N.W.2d 116

231 Minn. 309

STATE ex rel. KRUSE v. WEBSTER et al. (BRENNER, Intervenor).

No. 35156.

Supreme Court of Minnesota.

June 2, 1950.

On Taxation of Costs July 14, 1950.

SYLLABUS BY THE COURT.

1. In order to limit the time for issuance of a writ of certiorari under M.S.A. § 606.01, due notice requires written notice to be served upon the party applying for the writ.

2. Actual knowledge of results of a civil service examination does not preclude review by writ of certiorari on the ground of laches where it was within power of civil service commission, by compliance with its own rules, to limit time by service of written notice on testee.

3. Mere fact that others may be affected will not make legal an examination which did not substantially comply with law and with rules for holding examination.

C. A. (Gus) Johnson, Mankato, for appellant.

Carl W. Peterson, Mankato, Wilson, Blethen & Ogle, Mankato, for respondents.

KNUTSON, Justice.

This is an appeal from an order of the district court quashing a writ of certiorari to review an examination and attempted certification for the position of chief of police for the city of Mankato. The same matter has been here before, State ex rel. Brenner v. Hodapp, 230 Minn. ---, 41 N.W.2d 188, and only those facts, in addition to those set forth in our former opinion, necessary to a determination of the questions here involved will be stated.

Pursuant to L.1929, c. 299, as amended (the same as M.S.A. 419.01 to 419.18), the Mankato city council on April 27, 1937, by resolution, created and established a civil service commission for its police department. In compliance with the provisions thereof, the commission appointed pursuant to such resolution adopted and published civil service rules on July 31 of the same year.

During December 1947, William Kruse, Joe Brenner, one E. A. Vanthuyne, and others took an examination held by the police civil service commission for the office of chief of police. Vanthuyne received the highest mark, and his name was certified to the mayor and council as the man eligible, pursuant to which he was appointed. He held office until January 31, 1949, at which time his resignation became effective. On January 13, 1949, the civil service commission notified the mayor and common council that it had accepted the resignation of Vanthuyne and that Brenner was the next on the list and eligible for appointment. The council did not appoint Brenner, but, instead, appointed Kruse as acting chief of police. He still holds that position.

On June 1, 1949, Brenner, who is intervener and one of the respondents here, obtained a writ of mandamus to compel the council to appoint him chief of police. We considered certain questions involved in that matter in State ex rel. Brenner v. Hodapp, 230 Minn. ---, 41 N.W.2d 188, supra. On June 2, 1949, Kruse petitioned the district court for and obtained a writ of certiorari to review the validity of the examination held in December 1947 and the eligibility of Brenner to the position. Thereafter, the court made findings of fact and conclusions of law quashing the writ of certiorari upon the ground that Kruse had been guilty of laches in obtaining the writ. This appeal followed from the court's order.

The only question before us is whether the court's findings of laches can be sustained. We do not have before us the merits of the controversy in so far as it affects the validity of the purported examination and certification of eligibility.

Rule 16 of the commission's rules and regulations reads: 'Within ten (10) days following the approval of any eligible list by the Commission, the Secretary shall send to each testee a written report of his total weighted score, and if his name is placed on the eligible list, of his relative standing on the list. Any testee who fails to have his name placed on the eligible list shall be notified of that fact.'

It is conceded that no written report has ever been sent or furnished to Kruse, Brenner, or to any other person who took the examination involved. M.S.A. § 606.01 provides: 'No writ of certiorari shall be issued, to correct any proceeding, unless such writ shall be issued within 60 days after the party applying for such writ shall have received due notice of the proceeding sought to be reviewed thereby.'

Section 606.02 provides: 'Such writ must also be served upon the adverse party within such period of 60 days.'

In Re Judicial Ditch No. 2, 163 Minn. 383, 202 N.W. 52, 204 N.W. 318, we construed the term 'due notice' as used in this statutory provision, holding that written notice was required in order to set the statutory limitation of time in operation. We there said, 163 Minn. 384, 202 N.W. 53: 'To set at rest differences of opinion among members of the bar as to the meaning of this provision it is proper to say that the construction we place upon (G.S.1913) section 8313 is that the time within which the writ may be issued does not begin to run until written notice of the order or other proceeding to be reviewed has been served upon the party adversely affected or his attorney, and that actual notice does not take the place of such written notice.'

Intervener contends that the holding of this case has been weakened, if not modified, by In re Consolidation of County Ditches, etc., and Judicial Ditch No. 19, 165 Minn. 493, 206 N.W. 718. In that case, the order sought to be reviewed was made on February 11, 1925. The only formal written notice was served in August. On June 30, a writ of certiorari was applied for and issued. It was served on the judge on July 11, but not until October 9 was it served on the adverse party. The court merely held that the 60-day period allowed for service of the writ under § 606.02 had run, even reckoning from the date of the issuance of the writ, and that it must be assumed that the person applying for the writ had notice at the time of making such application and also that formal notice after the application and issuance of the writ would serve no useful purpose. The case did not reach the question here involved. Nor does Haimila v. Opsahl Company, 208 Minn. 605, 293 N.W. 599, hold to the contrary.

We have often held that certiorari as used in this state is not the common-law writ, 'but rather a writ in the nature of certiorari.' It is employed strictly in the nature of a writ of error or an appeal. Its legitimate office is to review and correct decisions and final determinations of inferior tribunals. Its office is not to restrain or prohibit, but to annul. 1 Dunnell, Dig. & Supp. § 1391; State ex rel. Nordin v. Probate Court, 200 Minn. 167, 169, 273 N.W. 636, 637; Johnson v. City of Minneapolis, 209 Minn. 67, 295 N.W. 406; State ex rel. Ging v. Board of Education, 213 Minn. 550, 7 N.W.2d 544.

The construction so placed on the notice required under § 606.01 harmonizes this section of our statute with that relating to appeals from orders and judgment in so far as establishing certainty respecting the commencement of the running of the time for appeal is concerned.

Section 605.08 provides that appeals may be taken from a judgment within six months After the entry thereof and from an order 'within 30 days After written notice of the same from the adverse party.' (Italics supplied.) In the case of an appeal fom an order, the time does not begin to run until Written notice is served. Actual notice does not suffice.

In Levine v. Barrett & Barrett, 83 Minn. 145, 85 N.W. 942, 87 N.W. 847, the court made an order denying the motion on February 13, 1901. Defendant served written notice on plaintiff of the making of the order, but plaintiff did not serve such notice on defendant. On April 20 defendant appealed. We refused to dismiss, holding that service...