State v. Fassett

• Decision Date: 20 August 1912
• Citation: 69 Wash. 555,125 P. 963
• Court: Washington Supreme Court
• Parties: STATE ex rel. POWELL v. FASSETT, Com'r of Public Utilities et al.

125 P. 963

69 Wash. 555

STATE ex rel. POWELL v. FASSETT, Com'r of Public Utilities et al.

Supreme Court of Washington

August 20, 1912

Department 1. Appeal from Superior Court, Spokane County; W. P. Bell Judge.

Quo warranto by the State of Washington, on relation of W. S Powell, against C. M. Fassett, Commissioner of Public Utilities of the City of Spokane, and others. From judgments of dismissal, relator appeals. Reversed and remanded.

E. O. Connor and F. B. Morrill, for appellant.

A. M Craven, Wm. E. Richardson, and Harris Baldwin, all of Spokane, for respondents.

GOSE J.

This is a quo warranto proceeding. The complaint alleges and the record shows that the city of Spokane is a municipal corporation of the first class; that on December 28, 1910, it adopted a new charter; that the defendant Fassett is, and since the 14th day of March, 1911, has been, commissioner of public utilities of the city; that the plaintiff, on the 1st day of July, 1909, was appointed to the position of construction foreman in the water construction department of the city, and continued in that position and performed the duties thereof up to and including the 28th day of January 1911, at the monthly salary of $125 per month; that the position was placed in the classified civil service by the civil service commission of the city on the 27th day of April, 1911; that the new charter provides that all employés in office at the time of its adoption shall retain their position, unless removed for cause; that on the 28th day of January, 1911, the plaintiff received a notice from the superintendent of the water department of the city, to the effect that he was 'relieved' from duty; that on January 30th said superintendent issued a notice, to the effect that the defendant Burke and succeeded the plaintiff as general foreman of construction; that Burke has ever since held the position; that the plaintiff was dismissed without notice and without a hearing; and that his name was stricken from the pay roll of the city. The prayer of the complaint is that the defendant Burke be ousted; that Fassett, as commissioner of public utilities, be required to restore the plaintiff to his former position and reinstate his name upon the pay roll of the city; that the plaintiff have judgment against the defendants for his salary since the day of his removal at $125 per month; 'and that said salary be paid to said plaintiff by the city of Spokane and the defendants herein.' The defendants, the city and Fassett, as commissioner of the public utilities of the city, filed separate demurrers, setting up the first, fourth, sixth, and seventh grounds of the statute. Rem. & Bal. Code, § 259. The demurrers were sustained, and, the plaintiff declining to plead further, a judgment of dismissal and for costs was entered on the 20th day of February, 1912. The defendant Burke answered, and, after trial, a judgment of dismissal, with prejudice and for costs, was entered in his favor on the 23d day of February following. On March 15th the plaintiff served and filed a single notice of appeal from both judgments. On March 18th he filed an appeal bond with appropriate reference to the two judgments.

The respondents have moved (1) to strike the briefs, on the ground that the errors are not clearly assigned, and (2) to dismiss the appeal and affirm the judgment because of the appellant's failure to serve and file a separate notice of appeal and a separate appeal bond upon each judgment. Upon the first ground, it suffices to say that we think the errors relied upon are sufficiently indicated to warrant their discussion. The motion to dismiss is without merit. There is but one case and one notice of appeal, and one appeal bond suffices, although there are two judgments. Rem. & Bal. Code, § 1719; First National Bank v. Fowler, 51 Wash. 638, 99 P. 1034; O'Conner v. Force, 58 Wash. 215, 108 P. 454, 109 P. 1014; Wetherall v. Wetherall, 56 Wash. 344, 105 P. 822. In the Fowler Case four actions were consolidated for trial; but separate findings and decrees were entered in each case. A motion was made to dismiss the appeal, because there was but one notice of appeal and but one appeal bond. In denying the motion, we said that the appellant had a right to treat it as one action, and that 'there was but one subject-matter involved.'

We need not consider whether the demurrer of the city was properly sustained, as the evidence submitted at the trial shows that the city had then paid the entire salary to Burke up to that time. This absolved it from liability to the appellant to that date. Samuels v. Harrington, 43 Wash. 603, 86 P. 1071, 117 Am. St. Rep. 1075.

The respondents Fassett and Burke contend that quo warranto does not lie, because the appellant's position is a subordinate one, and not an office, within the meaning of the charter or the Code. Rem. & Bal. § 1034. The new city charter establishes a commission form of government. Its applicable provisions are as follows:

'Commission, Rules and Powers. The commission, with the approval of the council, shall make such rules and regulations for the proper conduct of its business as it shall find necessary and expedient. The commission, among other things, shall provide for the classification of all employés, except day laborers and the appointive offices mentioned in sections twenty-four (24), twenty-five (25) and thirty-two (32) of this charter; for open competitive and free examination as to fitness; for a period of probation before employment is made permanent; for an eligibility list from which vacancies shall be filed; and for promotion on the basis of merit, experience and record. Employés within the scope of this article who are in office at the time of

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