Stowe v. Ryan

• Decision Date: 24 February 1931
• Parties: STOWE v. RYAN ET AL.
• Court: Oregon Supreme Court

296 P. 857

135 Or. 371

STOWE v. RYAN ET AL.

Supreme Court of Oregon

February 24, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; Fred W. Wilson, Judge.

Proceeding by C. S. Stowe against T. G. Ryan and others, constituting the Civil Service Commission for Multnomah County, and another, to review certain orders made by the Civil Service Commission resulting in the discharge of petitioner from his employment as chief deputy county clerk. Judgment dismissing the petition and writ, and petitioner appeals.

Affirmed.

This proceeding was instituted for the purpose of reviewing certain orders made by the civil service commission of Multnomah county, Or., resulting in the discharge of petitioner from his employment as chief deputy county clerk of that county. His petition represents that, after the Civil Service Act became a law, the county clerk of Multnomah county filed with the county auditor a list of employees in his office coming within the provisions of the act and eligible for retention thereunder, and included in that list the name of petitioner, with salary of $250 per month. He alleges that his incumbency commenced on January 7, 1929, and that his appointment has never been revoked, suspended, or set aside.

It appears that, on December 10, 1929, petitioner was served with an instrument purporting to be an order of discharge as chief deputy county clerk of Multnomah county, Or., signed by T. J. Ryan, J. O. Wilson, and H. C. Brumbaugh, constituting the county civil service commission, and petitioner alleges that this order was void for the reason that the action of the board was based upon the investigation and report made by an individual commissioner, and not upon the evidence; that the investigation was not by a public hearing after notice to petitioner, but that it was an ex parte proceeding, conducted by one member of the board only; that it was initiated by defendants without notice to him and without service of any process prior to the making of the order; and that he was not given an opportunity to appear by counsel and meet his accusers. Following the making of this order, petitioner was not discharged by the county clerk, but the auditor and board of county commissioners refused to audit and direct the county treasurer to pay to him the salary lawfully payable to him by reason of his service from the date of the service of the order.

Within ten days after the service of the order of discharge upon him, plaintiff served defendants with notice of appeal, and on January 22, 1930, "a further hearing was held by the said civil service commission for the purpose of determining whether or not the order of discharge * * * hereinbefore referred to was made for political or religious reasons, or was not made in good faith for cause. At said hearing, the said civil service commission was represented by Stanley Myers, District Attorney for Multnomah County, Oregon, the Multnomah County Employees' Association being represented by Earl Bernard. Counsel, and plaintiff appearing before the commission in person and by his attorneys, Jay Bowerman and Denton G. Burdick." At the conclusion of the hearing the commission took the matter under advisement, and on January 29th entered an order affirming the order of discharge made on December 10, 1929.

The petitioner alleges that the order and the proceedings upon which the order was based are void and of no effect, for the reasons above stated, and, further, in that they are in violation of the provisions of section 15, article 7, Oregon Constitution, and of section 1031, Or. L., and are in direct conflict with the provisions of section 28, chapter 162 General Laws of Oregon, 1929, "and, further, that section 21 of chapter 162 of the General Laws of Oregon for the year 1929 contains provisions which restrain free expression of opinion, and/or restrict the right to speak freely on a proper subject; provide for the taking of property of an individual without due process of law; and deny to this plaintiff the right of appeal; all of which is contrary to the provisions of the Constitution of the state of Oregon."

Pursuant to section 21, chapter 162, General Laws of Oregon 1929, it was ordered by the commission that the findings be certified to Hon. A. A. Bailey, county clerk, and to Hon. Ed. Sweeney county auditor, of Multnomah county.

The record shows that the cause was heard before Hon. Fred W Wilson, circuit judge, on March 25, 1930, and that, after a full discussion of the alleged errors, it was ordered and adjudged that the petition and writ "be, and the same hereby are, quashed and dismissed."

The petitioner appeals.

Denton G. Burdick, of Portland (Jay Bowerman, of Portland, on the brief), for appellant.

George Mowry and George A. Pipes, Deputy Dist. Attys., both of Portland (Stanley Myers, Ex Dist. Atty., and John Mowry Deputy Dist. Atty., both of Portland, on the brief), for respondents.

Earl F. Bernard, of Portland (Collier, Collier & Bernard, of Portland, on the brief), amici curiæ.

BROWN, J.

It appears from the order of discharge that Commissioner H. C Brumbaugh was designated to make the investigation into alleged political activities of this plaintiff and other employees of the county clerk's office, and that, upon submitting his findings in the matter, the entire personnel of the commission being present, such findings were adopted by the commission as a whole, and the commission as a whole having approved in toto the findings and recommendations of the designated commissioner, it was ordered that the plaintiff be discharged from the service of Multnomah county, on the grounds and for the reason that it appeared from the findings and testimony adduced at the hearing that he had violated the provisions of section 28, chapter 162, General Laws of Oregon 1929, "in that he did take part in political management and political campaign, and did engage in political activities for and against a person and persons subsequent to the 4th day of June, 1929, when the provisions of chapter 162, General Laws of Oregon for 1929 became effective; and did thereby commit a willful violation of the provisions of chapter 162, General Laws of Oregon for 1929." As we have already stated, this order was signed by the three members of the commission.

The plaintiff contended that the discharge was made for political reasons and was not made in good faith for cause, and that the board in making the discharge acted upon a misconception of the evidence and of the law.

Section 8-202, Or. Code 1930, provides that "any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors therein, as in this chapter prescribed, and not otherwise." Section 8-204 provides that the writ "shall be allowed in all cases where the inferior court, officer, or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously, or to have exceeded its or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise." The preceding section names those who shall be competent petitioners for a writ of review.

This proceeding arises out of the enforcement by the Multnomah county civil service commission of chapter 162, General Laws of Oregon 1929, codified as Or. Code 1930, §§ 27-2901, to 27-2936, inclusive. The purpose of the enactment, as expressed in the title, is:

"To provide a general system, based upon examination and investigation as to merit, efficiency and fitness, for the appointment, employment and promotion of certain county employees in counties having a population of 200,000 persons, or more, and to regulate the transfer, reinstatement, suspension and discharge of such employees; to create a county civil service commission in each such county; to prescribe the powers and duties of such commission; to authorize and empower the board of county commissioners of such counties to create all offices, places, positions and employments under civil service, and fix the salaries and compensation thereof; to provide for the adoption and induction of certain incumbents into service, and the retention of others until replaced; to provide for certain preferences and credits in favor of war veterans and experienced applicants; to provide penalties for the wilful violation of this act; and to repeal all acts and parts of acts in conflict with the provisions of this act."

Section 2 of the act provides what counties and county employees shall be subject to civil service. Section 3 prescribes the method of appointment, employment, promotion, and discharge of all persons under the act. Section 8 authorizes the commission to adopt rules and regulations in order to carry out the purposes of the act. Section 13 empowers the commission to investigate and report upon all matters touching the enforcement and effect of the provisions of the act, and the rules and regulations prescribed thereunder, and to inspect all places of employment affected by the act to ascertain whether such rules and regulations are being obeyed. Section 14 provides that all hearings and investigations before the commission or designated commissioner shall be governed by the rules of procedure to be adopted by the commission. Among other things, this section enacts:

"No informality in any proceeding or hearing, or in the manner of taking testimony before the commission, or designated commissioner, shall invalidate any order, decision, rule or regulation made, approved or confirmed by the commission provided, however, that no order, decision, rule or regulation made by any designated commissioner conducting any hearing or investigation alone shall be...