State ex rel. Spurck v. Civil Service Bd.

Decision Date14 May 1948
Docket Number34555.
Citation32 N.W.2d 574,226 Minn. 240
CourtMinnesota Supreme Court

Reargument Denied June 11, 1948. [Copyrighted Material Omitted]

Syllabus by the Court.

1. An appeal under M.S.A. s 43.12 to the state civil service board from an allocation of an employe to a position by the civil service director entitles the employe appellant to a public trial De novo before the state civil service board with all the incidents of a trial in a court of law including the right of subpoena, production of witnesses and documents, the taking of testimony, examination and cross-examination of witnesses, representation by counsel hearing, argument, decision on the merits, and the like.

2. While an employe's civil service rights are not property, they are rights entitled to protection of the law.

3. On certiorari it is not the province of the court to reweigh the evidence and to determine which of conflicting versions of the facts should be adopted; but where the evidence as a matter of law compels a certain finding and the administrative finding is to the contrary, the finding so made constitutes error of law, which it is the duty of the court to reverse.

4. Where on certiorari an administrative agency's determination is reversed, the court's decision as to the rule governing the rights of the parties is final and conclusive upon the agency.

5. Certiorari may be used as ancillary to mandamus, and where mandatory rights are established on certiorari they will be enforced by mandamus.

Appeal from District Court, Ramsey County; Gustavus Loevinger, Judge.

Briggs, Gilbert, Morton, Kyle & Macartney, of St. Paul, for appellant.

J. A. A. Burnquist, Atty.Gen., and Wm. C. Green, Sp.Asst.Atty.Gen., for respondents.


Petitioner brought this proceeding to reverse the decision of the state civil service board on his appeal from an order affirming the state civil service director's allocation of him to class attorney I in the division of social welfare. He claims that he was entitled as a matter of law to allocation to class attorney IV, a higher and better paid position than class attorney I, and he bases the claim of right to allocation to class attorney IV upon the fact that on April 22, 1939, his status as an attorney in the state relief agency was equivalent to class attorney IV under the civil service; that by transfer of the functions of the relief agency to the division the latter became by operation of law a continuation of the former; and that by statute he was blanketed into the division as of the date mentioned with permanent civil service status in the position he then had, viz., that of class attorney IV. Petitioner alleges that the civil service board not only denied him his procedural right to a trial De novo on the appeal, but also denied him his substantive rights to the position to which he was entitled by statute. The board made its records part of its return. From the order quashing the writ and affirming the board's decision, petitioner appeals.

The history of the efforts of petitioner to obtain his civil service rights and the denial thereof by the state civil service authorities appears from the decision of this court in State ex rel. Spurck v. Civil Service Board, Minn., 32 N.W.2d 583, decided this day, and State ex rel. Spurck v. Pennebaker, 215 Minn. 79, 9 N.W.2d 259. Suffice it to say that there have been several hearings before the civil service authorities, at least four trials in the district court, and three appeals to this court.

From 1934 to April 22, 1939, petitioner was employed as an attorney by the state relief agency, whose functions were transferred to the division of social welfare by the so-called reorganization act, which provides (M.S.A. s 15.04) that such a transfer of one agency to another constitutes a 'continuation' of the former. M.S.A. s 43.34 provides: '* * * that honorably discharged verterans of past wars and other persons enumerated in section 43.30 holding offices or employments within the classified service on the effective date of this chapter are hereby given a permanent classified civil service status as of the effective date of this chapter (April 22, 1939), and shall thereafter be subject to and protected by the provisions of this chapter * * *.'

Petitioner is an honorably discharged veteran of World War I and as such entitled to the benefits and protection of the last cited statute.

There are four classes of attorneys, the lowest of which is No. I and the highest No. IV. From the facts disclosed here, it appears that on and prior to April 22, 1939, the date from which petitioner was given by the statute permanent civil service status in the position he then held, his status was the same as that of class attorney IV under the civil service classification. The nature of his work, duties, responsibilities, and status in the agency were precisely the same. Because that was true, petitioner was entitled to allocation by the civil service director to class attorney IV. After the civil service act became effective, petitioner continued to occupy the same status and perform the same duties in the division of social welfare. In June 1939, the division employed one Metcalf, who was not an honorably discharged veteran of a past war, as an attorney to perform legal work of the same nature as that performed by petitioner. Thereupon it became necessary to allocate Metcalf to a position in the classified service. He was allocated to class attorney IV.

During the pendency in this court of an appeal in a mandamus proceeding to compel the civil service director to allocate petitioner to the class to which he was entitled (State ex rel. Spurck v. Pennebaker, 215 Minn. 79, 9 N.W.2d 259), he was allocated to class attorney II, and thereafter he was wrongfully discharged. After the discharge had been reversed on certiorari by the district court, he was allocated to class attorney I. After the director of civil service had allocated petitioner to class attorney I, he duly appealed to the civil service board under M.S.A. s 43.12, subd. 3, which reads: 'The director of the civil service shall allocate each office, position or employment in the classified civil service to one of the grades and classes within the classification, subject to an appeal to the board by an employee immediately affected at any time within 30 days following notice to him of his allocation, * * *.'

At the same time he requested a hearing before the commission, with all the incidents of a trial, including a hearing, the subpoena of witnesses, taking of oral testimony, representation by counsel, argument, and the like. The request was denied. In lieu thereof, the board advised petitioner that he had leave to submit written statements of witnesses for its consideration, but without hearing and argument. On November 1, 1943, the board's action as shown by its minutes was: 'The Acting Director referred to the Board all the files, records and other material referring to the allocation appeal of Mr. Richard F. Spurck. The Board then privately [1] considered, discussed and determined its action in this matter without the presence of either Mr. Spurck or his representatives or any staff member of the Civil Service Department. After full consideration of Mr. Spurck's appeal and all records, files and evidence submitted in connection with his allocation appeal, the Board unanimously affirmed the allocation of the position occupied on April 22, 1939 to the class attorney I. ' Thereupon, petitioner instituted the instant proceeding in certiorari.

The questions for decision, presented by petitioner's contentions are: (1) Whether the civil service board by denying the employe appellant a hearing, with all the incidents of a trial, denied him the hearing on appeal to which he was entitled under M.S.A. s 43.12; (2) whether an employe's civil service rights are entitled to protection of the law even though such rights are not property; and (3) whether as a matter of law he was entitled to allocation to class attorney IV.

1. The word 'appeal' like many others is one of variable meaning, as the cases cited herein show. Where, as here, the word is used in a statute granting a right of 'appeal,' its meaning depends upon legislative intention, which is to be ascertained by the same rules as in other cases. An 'appeal,' strictly speaking, is a proceeding by which a case is removed from a lower court to a higher one for trial there De novo, either upon the record made in the lower court or upon evidence newly introduced. Lappinen v. Union Ore Co., 224 Minn. 395, 29 N.W.2d 8; United States v. Goodwin, 11 U.S. (Cranch) 108, 3 L.Ed. 284; Com'r of Corporations, etc., v. J. G. McCrory Co., 280 Mass. 273, 182 N.E. 481; Cino v. Driscoll, 130 N.J.L. 535, 34 A.2d 6; Richmond v. Henderson, 48 W.Va. 389, 37 S.E. 653; Vol. 3 Words & Phrases, Perm. Ed., page 684, et seq. In the Cino case, 130 N.J.L. at page 537, 34 A.2d at page 8, the court said: 'The meaning of the word 'appeal' in its 'original and strictly technical sense' was a proceeding which was introduced into equity practice from the 'civil law' and 'by which the whole cause was removed from a lower to an appellate court' and was there tried 'de novo' upon evidence newly introduced.'

As said in the Richmond case, 48 W.Va. at page 404, 37 S.E. at page 660: '* * * Now, everybody knows that the legal signification of 'appeal,' unless the context otherwise manifests, means an appellate process which opens the former judgment and verdict, and sends the case to a higher court for trial De novo upon the same facts or new facts, regardless of the former trial.'

The word 'appeal' is not always used in statutes with its...

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