State v. City of Bemidji
| Decision Date | 27 December 1940 |
| Docket Number | No. 32529.,No. 32530.,32529.,32530. |
| Parties | STATE ex rel. LUND v. CITY OF BEMIDJI et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Beltrami County; D. H. Fullerton, Judge.
Mandamus proceeding by the State, on the relation of A. E. Lund, against the City of Bemidji and others, to compel defendants to pay the relator's wages as operator of a sewage disposal plant of the City of Bemidji, and certiorari proceeding by the State, on the relation of A. E. Lund, against the City of Bemidji and others to review the sufficiency of the evidence on which the relator's discharge was based. From judgments in favor of the relator, the defendants appeal.
Judgment in mandamus proceeding affirmed, and judgment in certiorari proceeding reversed.
George L. Bargen, of Bemidji, for appellants.
C. L. Pegelow, of Bemidji, for respondent.
The city of Bemidji is a city of the fourth class and operates under a homerule charter. Its governing body consists of a mayor and eleven councilmen.
In January, 1935, the city completed the construction of a sewage disposal plant. At that time respondent applied for and was appointed to the position of operator of the plant. In his application he stated that he had "been a resident of Bemidji for twenty years with the exception of the time spent in the United States army during the World War." Respondent was reappointed by the council at its organization meeting in March, 1935, and each year thereafter until 1939, when his application was rejected and another applicant, not a veteran, was employed. He filed an application each of the intervening years but made no reference in any of them, except the first, to his status as an honorably discharged soldier. Although present at the council meeting on March 6, 1939, when his application was rejected, respondent did not protest the action of the council or take any part in the proceedings.
On March 24, 1939, respondent caused to be served on the city council a notice in which he stated that he was an honorably discharged soldier and as such entitled to the rights and benefits of the Soldiers' Preference Act. He demanded reinstatement and compensation from the date of the attempted discharge. Following this the mayor served and filed written specifications charging respondent with incompetency and misconduct in the performance of his duties as operator of the plant and fixed a hearing on such charges for April 17, 1939. At that time the city council met and heard evidence on the charges.
On May 11, 1939, the council adopted a resolution in which it found a substantial part of the charges true and ordered respondent's removal and discharge. He thereupon instituted two actions against the city and the individual members of the council. One was in mandamus to compel appellants to pay his wages as operator of the plant from March 6, 1939, the date of the attempted discharge, until May 11, 1939, the date of the determination on the charges preferred by the mayor. The other action was in certiorari to review the sufficiency of the evidence upon which the discharge was based.
Both proceedings were tried by the court without a jury in October, 1939, under a stipulation that all of the evidence had upon the trial should apply equally to both proceedings in so far as it might be material. In the mandamus action, tried on October 23, the court found that the attempted discharge on March 6, 1939, was illegal and directed appellants to issue its warrants to respondent in payment of his salary for the period claimed. The decision in that case was based upon the theory that respondent could not be discharged without notice and hearing as provided in the Soldiers' Preference Act. In the certiorari proceedings, tried on October 26, the trial court found that the evidence taken before the city council in the removal proceedings was insufficient to sustain a finding of incompetency and that the action of the city council in discharging respondent was arbitrary, oppressive, and unreasonable. It ordered judgment quashing the proceedings had before the city council. There was no motion for amended findings or for a new trial in either proceeding.
1. It is conceded that respondent is an honorably discharged soldier. Appellants contend, however, that by his conduct he has waived the right to preference under the Soldiers' Preference Act and has estopped himself from asserting such right. They claim that respondent never notified them of his status as an honorably discharged soldier and never informed them that he claimed any rights under the Soldiers' Preference Act except in so far as he referred in his first application to the fact that he had been in the army. They further contend that respondent's employment was for a fixed time terminating each year and that he acquiesced in that arrangement by filing a new application for appointment and accepting a new appointment each year of his employment.
This court in State ex rel. Castel v. Village of Chisholm, 173 Minn. 485, 217 N.W. 681, determined these contentions adversely to appellants' claims. In that case relator, an honorably discharged soldier employed by the village of Chisholm, was discharged from his employment without notice or hearing. He promptly applied for a hearing and reinstatement, which were denied. He then brought mandamus under G.S.1923, §§ 4368 and 4369. The trial court found in relator's favor and directed judgment for his reinstatement. This court on review held that the Soldiers' Preference Act does not prescribe or require formal notice to the employer of the status of an employee under the act; that it is sufficient if the officer or board having the power of appointment and removal has knowledge of the preference rights of the employee at the time it takes action.
In the instant case the city had notice of respondent's status at the time of his original employment. If that employment was continuous rather than for a fixed period it follows that he could not be removed "except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges," in accordance with the provisions of 1 Mason Minn.St.1927, § 4369. This court in the Chisholm case also held that employment of a nature similar to that here involved was not for a fixed term but was continuous until terminated by removal proceedings in accordance with the Soldiers' Preference Act. Commissioner I. M. Olsen, speaking for the court, said (173 Minn. 489, 217 N.W. 682): ...
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