State ex rel. Tamminen v. City of Eveleth
| Decision Date | 09 June 1933 |
| Docket Number | 29,408 |
| Citation | 249 N.W. 184,189 Minn. 229 |
| Parties | STATE EX REL. CARL W. TAMMINEN v. CITY OF EVELETH AND OTHERS |
| Court | Minnesota Supreme Court |
Mandamus in the district court for St. Louis county upon the relation of Carl W. Tamminen to compel the city of Eveleth its mayor, and council to reinstate relator, who claims preference as an honorably discharged soldier of the world war, in the position formerly held by him in the office of the city clerk, from which he was discharged. Upon trial before Bert Fesler, Judge, the court made findings of fact and held that relator was entitled to a peremptory writ commanding his reinstatement. From an order denying their motion for a new trial respondents appealed. Affirmed.
Officer -- de facto officer.
1. (a) The general rule is that there can be no de facto officer unless there is a de jure office for him to fill.
Officer -- de facto officer.
(b) The rule is generally limited, or an exception thereto made, to this extent, that where there is a legislative act or municipal ordinance in form creating an office and an officer is elected or appointed to such office, then, though the legislative act or ordinance is unconstitutional or invalid, the officer elected or appointed and acting thereunder is an officer de facto until the act or ordinance is declared by the courts to be unconstitutional or invalid.
Officer -- de facto officer.
2. Where there is no law or ordinance even attempting to create an office or where the law or ordinance purporting to create it has been held unconstitutional or has been repealed, no one can become an officer de facto by assuming to act in a wholly nonexisting office.
Municipal corporation -- officer -- removal.
3. The findings of the court that the city council appointed another person to the same position and employment that plaintiff had theretofore held, and that the members of the council who voted to discharge plaintiff and appoint another to his former position did so for political or personal reasons, or both, are sustained by the evidence.
Municipal corporation -- officer -- abolition of office.
4. Where the plaintiff was employed in the city clerk's office under the title of deputy city clerk and the council purported to abolish the office of deputy city clerk, but the same work plaintiff had theretofore done remained to be done in the city clerk's office, he was, on his application as an honorably discharged soldier with preference rights under the soldiers preference act, entitled to be retained or reappointed to do that work as against one having no preference rights to such employment.
New trial -- newly discovered evidence.
5. The claimed newly discovered evidence presented no valid grounds for a new trial.
Municipal corporation -- officer -- appointment -- preference.
6. The court was justified in holding that the position held by plaintiff prior to January 5, 1932, was not one of a "strictly confidential relation to the appointing officer."
Municipal corporation -- officer -- term of office.
7. The term of office of a city employe, appointed by the city council without term, does not expire at the expiration of the term for which the members of the council appointing him were elected.
Victor E. Essling, Edward W. Peterson, and M. H. Greenberg, for appellants (respondents below).
Giblin & Manthey, for respondent (relator below).
The appeal is from an order denying defendants' motion for a new trial, after trail by the court and decision in favor of the plaintiff. For convenience we refer herein to Carl W. Tamminen as plaintiff and to the city of Eveleth, its mayor, and councilmen as defendants, unless otherwise stated.
There is not much dispute as to the facts. The city of Eveleth operates under a home rule charter and has a commission form of government. The council, consisting of the mayor and four councilmen, governs the city. The mayor and councilmen are elected in November of each odd-numbered year and hold office for a term of two years. Plaintiff is an honorably discharged soldier who had served in the United States army in the world war. He was duly appointed to a position in the city clerk's office on January 7, 1930, without fixed term, and served as such until discharged and refused further employment on January 5, 1932, by the new council elected in November, 1931. On December 19, 1931, the plaintiff notified the new mayor and council members elected that he applied for the position of chief bookkeeper and general office worker in the city clerk's office, "which position has heretofore been called deputy clerk, and which embraces those duties that I have performed during the past two years of my appointment under whatever title or name the said position may be continued under the term beginning January 5, 1932." He further notified them of his army service and honorable discharge, and that he claimed preference under the soldiers preference act. 1 Mason Minn. St. 1927, §§ 4368, 4369.
On January 5, 1932, the new council, after going into office and organizing, by resolution purported to abolish the position and office of deputy city clerk, refused to appoint plaintiff to any position in the city clerk's office, and appointed one Axel Brandt as bookkeeper in the city clerk's office at a salary of $150 per month. The application of plaintiff for appointment, as before stated, was then before the council. The city charter does not name or establish any office of deputy city clerk. It does provide that the council may by ordinance create and discontinue offices and employments other than those prescribed in the charter. No ordinance has been adopted either creating or abolishing the office of deputy city clerk. Axel Brandt, appointed as bookkeeper, was not a person entitled to preference under the soldiers preference act, or otherwise. On January 18, 1932, plaintiff again notified the council of his preference rights and demanded a hearing and reinstatement to do the same work he had theretofore done in the city clerk's office. The council took no action thereon. Shortly thereafter this mandamus action was commenced, and the court, after trial thereof, ordered that a peremptory writ of mandamus issue commanding the defendants to reinstate the plaintiff to the position held by him in the city clerk's office prior to January 5, 1932.
It appears from the evidence that for several years prior to 1932 an employe doing work in the city clerk's office had been called and referred to as deputy city clerk, and that the plaintiff, in his application for appointment in January, 1930, so named the position applied for and gave a bond to the city wherein he stated that his position was that of deputy city clerk. It also appears that on one occasion he purported to act as deputy city clerk in attesting an affidavit or oath by a third party and in a few other instances purported to act as deputy city clerk.
The defendants contend that plaintiff was a de facto officer, holding a de facto office, and that the council had abolished such office and therefore plaintiff was not entitled to reappointment.
The court found that the position occupied by the plaintiff in the city clerk's office prior to January, 1932, was that of a bookkeeper and general office clerk and that he was in fact not a deputy city clerk. The court further found that plaintiff's application was for appointment to do the same work he had done prior to January, 1932; that the council...
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