State ex rel. Littau v. City of Seattle, 26296.

• Decision Date: 05 January 1937
• Docket Number: 26296.
• Citation: 189 Wash. 64,63 P.2d 515
• Parties: STATE ex rel. LITTAU v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

63 P.2d 515

189 Wash. 64

STATE ex rel. LITTAU v. CITY OF SEATTLE et al.

No. 26296.

Supreme Court of Washington

January 5, 1937

Department 1.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Proceeding by the State, on the relation of Frank Benjamin Littau, for a writ of mandamus to the City of Seattle and others. From a judgment of dismissal, relator appeals.

Affirmed.

Edward H. Chavelle, of Seattle, for appellant.

A. C Van Soelen, Glen E. Wilson, and George T. McGillivray, all of Seattle, for respondents.

STEINERT Justice.

Frank Benjamin Littau, as relator, filed in the superior court an affidavit and application for writ of mandamus to compel his reinstatement to the position of patrolman in the police department of the City of Seattle. Upon the issuance of an alternative writ, the City appeared by demurrer to the affidavit and application, and by motion to quash the writ and, without waiving either the demurrer or the motion answered upon the merits. The court sustained the demurrer and granted the motion to quash. The relator elected to stand on his pleading, and the court thereupon entered judgment of dismissal with prejudice. The relator appealed and henceforth will be referred to as appellant.

Our statement of the case is based on appellant's pleading, which consists of the application and affidavit combined and an exhibit, attached thereto and made a part thereof, comprising a transcript of certain proceedings had Before the civil service commission.

Prior to December 2, 1935, appellant had, for nineteen years, been employed as a police officer of the City of Seattle and, during all that time, had contributed to the pension fund of the police department. On December 30, 1935, the chief of police, by general order, dismissed appellant from the department, because of certain charges made against him on December 2 by two residents of the city.

The appellant thereupon demanded of the civil service commission an investigation of the charges. A hearing was ordered at which appellant was present in person and represented by counsel. Evidence was taken at length, a transcript of which, as an exhibit, was, by attachment and reference, incorporated into, and made a part of, appellant's application for the writ.

After the hearing, the commission took the matter under advisement and, later, entered an order sustaining the action of the chief of police in dismissing appellant as of December 30, 1935.

The reason for the discharge of appellant is disclosed by the transcript of the evidence taken at the hearing Before the civil service commission.

It appears that, at about 4:30 a. m. of December 2, 1935, an automobile had parked near an apartment house at Second avenue and Blanchard street in Seattle. The occupants of the car were a young man and a young woman, both of whom were unmarried. The man maintained living quarters and also his business office in the apartment house and, upon the particular occasion, was intending to go to his room to attend to some telephone calls, while his companion waited for him in the automobile. After getting out of the car, the man walked around to its opposite side, where the young woman was sitting, and, according to his usual custom on similar occasions when with her, kissed her a momentary good-bye. Just then, appellant, who was on duty in that vicinity, approached the couple and inquired what was going on. According to appellant's testimony, the young man and young woman were not only kissing each other, but were also indulging in lewd and lascivious conduct. Apparently, however, appellant was satisfied with the explanation given him at the time. At any rate, he made no arrest but went on down the street, presumably in the performance of his regular duties. The driver of the car then went into the apartment house to attend his errand, while the young woman remained in the car with the doors locked.

Within a very few minutes, however, and while the young man was still in the apartment house, appellant returned to the car and rapped on the window. The occupant of the car unlocked the door, thinking that she was to be further questioned. Thereupon, appellant leaned into the automobile and at once began taking improper liberties upon her with his hands, at the same time asking her to kiss him. Taken by surprise and resenting his advances, the young woman commanded the officer to get away from the automobile. Just then, her companion appeared, and appellant thereupon retreated across the street and pursued his way.

On being told by his companion what had occurred in his absence, the young man, with the young woman accompanying him, drove around and about the streets in that vicinity in search of appellant and finally located him some distance away. A verbal altercation then took place between the two men, during which appellant threatened the driver of the car with arrest, unless he should 'get going' at once.

The couple, after further discussing the matter between themselves, decided to report the occurrence to police headquarters, which they did. Two officers, accompanied by the man complainant, were dispatched to locate appellant and bring him to the station. After appellant had been brought to headquarters, further inquiry was made by one of the...