State ex rel. Thein v. City of Milwaukee

Decision Date11 October 1938
Citation229 Wis. 12,281 N.W. 653
PartiesSTATE ex rel. THEIN v. CITY OF MILWAUKEE et al.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

Mandamus by Edwin J. Thein, a city civil service employee, to require the defendants, city of Milwaukee and others, to recognize and accord to Thein certain seniority rights as a public works inspector of the city and for recovery of damages resulting from the deprivation of those rights. The case having been tried to the court, judgment was rendered in favor of relator according to him his seniority rights with damages and costs.

The relator is a public works inspector in the city of Milwaukee, who complains that he has not been accorded his seniority rights in the matter of layoffs during slack periods.

In the department of public works there were, prior to the year 1923, a number of specialized inspectors. In accordance with law these positions had been set up by the common council of the city and classified by the board of city service commissioners under separate titles or divisions, such as inspector of electric and gas installation, inspector of dredging and docks, inspector of highways, inspector of sewer construction, and inspector of tunnel construction. Seniority rights of these inspectors were determined separately for each division.

In 1922, the commissioner of public works decided to create a new position to be known as “public works inspector.” The new inspectors were to be qualified to inspect all public work, such as paving, sewers, water pipe, tunnels, and the like, so that they could be transferred from one type of public work inspection to another. The commissioner believed that economies would result from having one inspector do all of the inspection work in one part of the city.

By proper action the city council authorized the employment of not to exceed seventy-five of the new public works inspectors, and thereafter no provision was made for the salary or wages of inspectors in the older classifications. On March 2, 1923, the commissioner of public works reported the creation of this new position to the board of city service commissioners, and submitted names of certain men who in his judgment were capable of filling the new positions.

The civil service authorities refused to certify any names for such positions without examination, but they classified the new position and scheduled a promotional examination. As required by law, notice of the examination was published and was sent to the old inspectors. Among other things it contained the following: “There has now been created, for the different bureaus, the position of Public Works Inspector, the intention being that persons in such position be transferred from bureau to bureau as the work requires, and that incumbents thereof be required to perform the work in the different bureaus.”

On April 7, 1923, a promotional examination ws held. In accordance with city service rules governing promotional examinations, credit was given for previous service in determining final standings. An eligible list was then made up, and later, in 1924 and 1925, other names were certified after entrance examinations had been held.

For some time prior to 1923 the relator had been a highway inspector in the department of public works, and he was therefore eligible for the promotional examination of April 7, 1923. He passed the examination and was placed upon the eligible list; and his name was certified by the board of city service commissioners for the position of public works inspector. He entered upon the performance of his duties in the new position and has been employed there ever since, except when laid off for seasonal reasons.

Among those who were certified as a result of the promotional examination of 1923 were other inspectors who had entered the service of the city before the relator. Although they were given credit for prior service in determining their standing upon the examination some of them ranked below the relator after such credit had been given. A new schedule of seniority was established, and for a period of years the relator was given preference over certain men who had been longer in the service of the city, in the matter of layoffs during slack periods.

When the problem of layoffs and loss of pay became more acute during the depression, one of the older men objected to the seniority schedule which had been followed since 1923, and took the matter to the city service commission, which requested an opinion from the city attorney. On January 2, 1930, the city attorney wrote to the commission that in his opinion a new position had been created in 1923, and that seniority should be determined from that date. By a vote of three to two the city service commission determined to follow this opinion.

The matter was later taken to the city council, which in 1935 passed a resolution directing the city service commission to recognize seniority according to the schedule in effect...

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10 cases
  • Campana v. City of Greenfield
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 28 Septiembre 2001
    ...an employee without due process if the termination is the result of a governmental reorganization. State ex rel. Thein v. City of Milwaukee, 229 Wis. 12, 12, 281 N.W. 653 (1938). This governmental right is known as the "reorganization exception." Misek v. City of Chicago, 783 F.2d 98, 100 (......
  • Castelli v. Carcieri, No. PC 07-6322 (R.I. Super 7/31/2008)
    • United States
    • Rhode Island Superior Court
    • 31 Julio 2008
    ...cannot "cry `reorganization' in order to circumvent . . . constitutional and statutory protections"); State ex rel. Thein v. City of Milwaukee, 229 Wis. 12, 12, 281 N.W. 653, 655-56 (1938) (an employee generally can attack the legitimacy of a reorganization by showing that no reorganization......
  • Castelaz v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court
    • 4 Marzo 1980
    ...of civil service employees. State ex rel. Dietrich v. Miller, 25 Wis.2d 371, 130 N.W.2d 768 (1964). In State ex rel. Thein v. Milwaukee, 229 Wis. 12, 281 N.W. 653 (1938), a civil service employee brought a mandamus action against the city to compel reinstatement of seniority rights and dama......
  • Felde v. Town of Brookfield
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 7 Agosto 2008
    ...to a legitimate governmental reorganization is not entitled to the protections due a for-cause employee. State ex rel. Thein v. City of Milwaukee, 229 Wis. 12, 18, 281 N.W. 653 (1938). In Thein, the court Civil-service laws are not intended to prevent good-faith reorganization with a view o......
  • Request a trial to view additional results

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