State ex rel. Schwehm v. Morrison

• Decision Date: 14 February 1955
• Docket Number: No. 20367,20367
• Parties: STATE ex rel. Joseph G. SCHWEHM v. deLesseps MORRISON, Mayor of New Orleans, Herman L. Barnett, Chairman and Joseph W. Montgomery, Edward D. Rapler, Members Department of City Civil Service of New Orleans, Louisiana.
• Court: Court of Appeal of Louisiana — District of US

Page 192

78 So.2d 192

STATE ex rel. Joseph G. SCHWEHM v. deLesseps MORRISON, Mayor of New Orleans, Herman L. Barnett Chairman and Joseph W. Montgomery, Edward D Rapler, Members Department of City Civil Service of New Orleans, Louisiana.

No. 20367.

Court of Appeal of Louisiana, Orleans.

Feb. 14, 1955.

Rehearing Denied March 14, 1955.

Richard Dowling, New Orleans, for relator and appellant.

Henry B. Curtis and Grady C. Durham, New Orleans, for respondents and appellees.

McBRIDE, Judge.

This is a mandamus suit brought by relator, Joseph G. Schwehm, a member of the Police Department of New Orleans. He became affiliated with the police force on June 24, 1925, was elevated to the rank of Captain of Detectives on December 31, 1942, was blanketed in with that rank under the Civil Service Statute, Act 171 of 1940, as amended by Act 177 of 1942, LSA-R.S. 33:2391 et seq., and was demoted to the rank of Lieutenant of Police on October 10, 1946, by the then Superintendent of Police, for the reason that there were 'too many Police Captains and Detective Captains.' Relator has impleaded as defendants the Mayor of the City of New Orleans and the then Chairman and Members of the Department of Civil Service of New Orleans.

The petition alleges that notwithstanding that he has 'never lost his status of Captain of Detectives' and was preferentially eligible for reappointment, relator was entirely disregarded and other persons were elevated to the grade of Captain of Detectives in the Police Department on February 15, 1947, and again on January 1, 1948; that he registered timely complaints when such appointments were made and that he insisted that he himself should have been appointed, but all to no avail. Relator prays for the issuance of a writ of mandamus compelling the defendants to recognize him as Captain of Detectives in the Police Department of New Orleans and to place his name on the roster of the Department of Civil Service as being eligible for appointment to any existing vacancy or to any vacancy which might occur in the future in the grade of Captain.

Several defenses are made by the respondents, one of which is 'that relator has waited more than three and one-half years to bring this action and * * * he has been guilty of laches of such a nature as to bar his right for a peremptory writ of mandamus.'

Upon the trial of the rule to show cause, the testimony of certain witnesses was heard and certain documentary evidence was received; the trial judge rendered judgment recalling the alternative writ of mandamus and rejected relator's demands. Relator then appealed from the judgment to the Supreme Court of Louisiana, but that Court, upon reaching the conclusion that it had no jurisdiction of the appeal, transferred the matter to us. See 224 La. 811, 70 So.2d 881.

In the written reasons for judgment handed down, the trial judge stated:

'I would feel no hesitancy in issuing the writ applied for herein except that I am of the opinion that Relator's case comes within the doctrine of State ex rel. Martin v. Alford , 13 So.2d 845, in that his rights have been lost by his laches.'

We are in full agreement with the holding that relator may not at this late date judicially enforce any of the rights he may have had, and this for the reason he has forfeited them by virtue of his unreasonable and negligent delay, which amounts to laches on his part, in seeking redress in the courts. He is now no longer privileged to have a judicial review of the action of the Superintendent of Police in demoting him or the subsequent failure of the Department of Civil Service of New Orleans to restore him to the rank of Captain in the Police Department. That, therefore, makes it unnecessary to determine whether relator was unfairly dealt with or not and whether he retains a Captain's rank or is still eligible to re-employment as such.

It is settled jurisprudence that an aggrieved public employee situated as is relator may not wait for any unreasonable length of time before seeking the aid of the courts. The theory of the doctrine of laches so far as applicable to the situation with which we are concerned was excellently summed up by the Court of Appeal for the First Circuit in Williams v. Livingston Parish School Board, 191 So. 143, 144, wherein it was said:

'* * * The rule that laches on the part of such public employee will bar his claim for reinstatement is not based on any law of prescription or limitation of actions, but it arises from reasons of public policy. The processes of government must go on and employees and officials must be paid out of public revenue for carrying on the functions of government. Where a discharged employee sits idly by for an unreasonable length of time without pressing his claim for reinstatement, those charged with the duty of securing the necessary working personnel cannot hold up the administrative functions of government awaiting a decision on the part of the discharged employee as to what course he will take. The prevention of duplication of positions and the payment of double salaries requires such discharged employee, not only to press his demands, but also to submit his claim to the courts for adjudication without unnecessary delay.'

In State ex rel Martin v. Alford, 203 La. 232, 13 So.2d 845, 848, in which numerous authorities are cited, our Supreme Court said:

'Relator waited eight months and eight days before filing the present suit. * * *

'In these circumstances, relator is guilty of such laches as must defeat his right to the relief sought, if any such right existed, which we do not think is the case.

'It is well settled that the right of a public official or employee to be reinstated may be lost by laches or unreasonable delay in making application for that purpose.'

Relator's counsel contends that State ex rel Martin v. Alford is to be distinguished from the instant case and is not applicable for the reason that the relator in the cited case sought reinstatement to a position from which he had severed all connections by voluntary resignation. But counsel fails to recognize the fact that the courts have generally and uniformly held that irrespective of the cause for a public employee's separation from service, public policy dictates that he must proceed expenditiously to assert his legal rights in order that the public fisc, the public convenience, and the ordinary functions of government might not suffer or be disturbed through his procrastination.

Thus, it was said by the United States Supreme Court in United States ex rel. Arant v. Lane, 249 U.S. 367, 39 S.Ct. 293, 294, 63 L.Ed. 650:

'When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his case, obvious considerations of public policy make it of first importance that he should promptly take the action requisite to effectively assert his rights, to the end that if his contention be justified the government service may be disturbed as little as possible and that two salaries shall not be paid for a single service.'

Similarly, our own Supreme Court in State ex rel. Skelly v. Board of Commissioners, 159 La. 465, 105 So. 510, 511, said:

'* * * We believe that plaintiff was harshly and unjustly dealt with, but we realize that in the absence of prompt action on his part to correct the evil, the taxpaying public have an interest that is paramount to that of plaintiff, and such a vital interest as the courts of the land cannot ignore.'

Counsel for relator seeks to excuse relator's delay before the bringing of the suit and states that relator consistently and continuously made complaint to the Department of Civil Service and although he was given excuses which were without merit, he has continued to 'fight for his rights' before the Department until November 1949 at which time relief was finally denied to him.

Where the aggrieved public employee has probable cause for believing that there is a reasonable possibility of being amicably reinstated in the service, the employee may wait before bringing...