State ex rel. Martin v. Alford

• Decision Date: 17 May 1943
• Docket Number: 36774.
• Citation: 203 La. 232,13 So.2d 845
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. MARTIN v. ALFORD, Superintendent, Department of State Police, et al.

13 So.2d 845

203 La. 232

STATE ex rel. MARTIN v. ALFORD, Superintendent, Department of State Police, et al.

No. 36774.

Supreme Court of Louisiana

May 17, 1943

Eugene Stanley, Atty. Gen., W. C. Perrault, Asst Atty. Gen., and Edward M. Heath, of New Orleans, for appellants.

Kemble K. Kennedy, of Baton Rouge, for appellee.

ROGERS Justice.

This is a mandamus proceeding in which William F. Martin, the relator seeks to be reinstated as an employee of the Department of State Police and to obtain a judgment for his salary at the rate of $175 per month from August 5, 1941, until such time as he is restored to his employment.

During the year 1928, the relator was employed by the Louisiana Highway Commission as a highway partolman. He retained this position until the Department of State Police was created by Act No 94 of 1936, when he was transferred to and commissioned by the Department as a patrolman. On or about June 13, 1940, he was promoted to the position of Sergeant and commissioned as such. He remained in that position until August 5, 1941, when he claims he was summarily dismissed from the service by Steve Alford, Superintendent of the Department. At that time relator was serving as a Desk Sergeant at the State Police Headquarters, in the City of Baton Rouge, and his salary as such was $175 per month.

Alleging that he was illegally dismissed from his employment, without written charges having been preferred against him, without hearing, and without complying with the provisions of Act No 94 of 1936, as amended, relator brought this suit for mandamus against Steve Alford, Superintendent of the Department of State Police, Ludlow B. Baynard, State Auditor, and Andrew P. Tugwell, State Treasurer. The mandamus was sought against the State Auditor to compel him to issue relator's salary warrant or warrants to the State Treasurer, and against the latter officer to compel him to honor the warrants.

The State Auditor and the State Treasurer filed exceptions of misjoinder and no right or cause of action, and, with reservation of the exceptions, filed their answer. In their answer, the Auditor and the Treasurer denied the right of the relator to enforce his demand as against them, and they specially pleaded laches and estoppel by laches on the part of the relator.

No exception was filed by the Superintendent of the Department of State Police. He answered, denying relator's petition, and specially pleaded laches and estoppel by laches on the part of relator.

After argument by counsel, the exceptions filed by the State Auditor and the State Treasurer were referred to the merits. The case was then heard and submitted on the merits, resulting in a judgment in favor of the relator as prayed for. All the respondents have appealed from the judgment.

The exceptions filed by the State Auditor and the State Treasurer appear to be well founded, but it is not important to determine that question since we have concluded that, on the merits, plaintiff's case can not be maintained.

The facts, as disclosed by the record, are that relator was serving as a patrolman in the Department of State Police for some years prior to the time the respondent Alford became superintendent of the department. On June 13, 1940, relator was made a sergeant by Alford, and he was discharging the duties of desk sergeant on August 5, 1941. On that date relator was summoned to the office of the superintendent where a discussion took place between them, resulting in the severance of relator's employment with the Department of State Police.

There is a serious dispute as to whether the relator was discharged by the superintendent, or whether he voluntarily resigned from the police force. Relator insists that he was summarily discharged, but, on the other hand, Superintendent Alford insists that relator resigned.

The discussion that took place between the relator and the superintendent occurred between themselves and behind closed doors. There were no other persons present and therefore no witnesses, other than the parties themselves, who could testify as to what was actually said on that occasion. There is no written evidence of what transpired for the reason that while relator did not submit his resignation in writing, neither did the superintendent issue any written order or notice discharging relator.

It is also a fact that after the discussion in the superintendent's office, relator left the Department of State Police and, without making any legal or other protest, without asking for a copy of written charges against him, and without asking for a hearing, waited eight months before bringing this mandamus suit for his reinstatement and the recovery of his back salary.

Testifying in his own behalf, relator stated that on August 5, 1941, he was on the afternoon shift from twelve to four o'clock, sitting at his desk, when Superintendent Alford passed his office; that Alford told him to come into his office; that he followed Alford into his office and that Alford then told him to turn in his uniform; that he asked Alford if he wanted him to finish the day, 'and he (Alford) said, 'No' that he didn't want him to finish a damn thing; so I got my hat and walked off.' Later in his testimony, in answer to a question of his counsel, relator stated that Alford asked him if he would sign a resignation, which he refused to do. On cross-examination, on being interrogated as to what took place between him and Superintendent Alford, the witness stated that the only thing the superintendent said, in addition to demanding that he turn in his uniform, was 'that some of the politicians didn't want him on the job, and that they had been trying to get rid of me.'

Superintendent Alford, who was called for cross-examination by relator and also testified on his behalf, flatly contradicted the testimony given by relator. He expressly denied the statement of relator that he told him the politicians wanted to get rid of him. In answer to a question relative to the connection, if any, that politicians had with the matter, the witness stated: 'All the politicians I know were trying to help him. All my political friends have been trying to help him.'

Superintendent Alford's version of the incident resulting in relator's severing his connection with the Department of State Police, as shown by his testimony, is as follows: That on the evening of August 4th, 1941, he ascertained that relator was absent from his post; that relator had taken a patrol car and was away for a period of an hour and forty-five minutes, during which time 'he had gone down the street to a house that he frequently went to and he stayed there an hour and forty-five minutes.' The witness further testified that on the evening of August 5, 1941, he called relator into his office, 'and said, 'Bill, I have had plenty of complaints in regard to your conduct--sleeping on duty, going away and leaving your post, and you are responsible for this office for eight hours. You left your post last night and took the patrol car and tied up the men left in the office.' He said he did. I asked him if he had done that, and he said that he had. I said, 'I have told you time and again that the time would come when I would have to do something about it. Therefore, I am going to prefer charges against you in regard to that.' He said, 'That will not be necessary. I will resign. I will quit.' And he walked out of the office and did not stop at the desk--he just kept going. There was nothing said about him turning in his clothes at any time by him. He did not stop at the office. I followed him Out.' The witness further stated that by charges, he meant charges before the Police Board.

In weighing the testimony of relator and Superintendent Alford from the standpoint of its reasonableness or unreasonableness, the testimony of the superintendent appears to be the more reasonable and in accordance with the facts. It is difficult to believe that the superintendent called relator into his office and discharged him from the service by merely demanding that he turn in his equipment without assigning any reason for his action. The statement of the superintendent appears to be the authentic narrative of the incident. It is certainly more reasonable to believe that the superintendent summoned relator to his office to inform him that complaints of gross neglect of duty had been made against...