APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Mr. I. A. Jennings, City Attorney, Mr. Hess Seaman and Mr. Richard F. Harless, his Assistants, for Appellant.
Mr. Geo. T. Wilson and Messrs. Minne & Sorenson, for Appellee.
[53 Ariz. 241] LOCKWOOD, J.
This is an appeal by the City of Phoenix, a municipal corporation, hereinafter called defendant, from a judgment in favor of Charles Sittenfeld, hereinafter called plaintiff. The facts of the case are not in dispute, and may be stated as follows: Plaintiff was for some time prior to August 31, 1934, employed as a policeman by defendant. On that date he was temporarily laid off from his employment because the police department of defendant was operating in excess of its budget. He made application before the civil service board of said city for a hearing upon the order laying him off, but the board, notwithstanding this request, refused to grant it, and on September [53 Ariz. 242] 7th affirmed the lay off. He immediately filed action in the superior court of Maricopa county, applying for a writ for certiorari to review the order of the board. On December 29th, 1934, the court found that the civil service board did not follow the charter, ordinances and the civil service rules and regulations of defendant in approving the temporary lay off of plaintiff and denying him a hearing; that he was not at the time the lowest ranking member in seniority in the personnel of the police department, and, in substance, that the board had not jurisdiction to lay off plaintiff as it did. The judgment was that the order of the civil service board made September 7, 1934, approving the lay off of August 31, 1934, be set aside, vacated and annulled, and all proceedings and acts of the defendant and of the board held and done thereunder were quashed and held for naught. No appeal was ever taken from this judgment and it eventually became final, but notwithstanding the defendant and board refused to reinstate plaintiff until the 7th of May, 1935, and refused to pay him any salary from September 1, 1934, up to May 7, 1935. The prayer of the complaint herein was for the amount alleged to be due plaintiff as salary during the time he was so laid off, and the court rendered judgment in his favor as prayed for, less one hundred dollars which plaintiff had earned during his suspension as aforesaid, whereupon this appeal was taken.
There are four assignments of error raising certain legal questions, which we shall consider in their order. The first is that in discharging employees of a municipality, the officers thereof act in a governmental capacity, and no liability in damages rests upon the defendant city for their erroneous or wrongful actions; that the civil service board is a quasi-judicial body for whose erroneous or wrongful actions defendant is not [53 Ariz. 243] liable in damages, and that there is no ordinance, charter or statute requiring the city to pay the salary of an employee removed from his employment in violation of the Civil Service Law during the period between his removal and reinstatement. Summed up in plain language, the contention is that the officers of a municipality operating under a civil service law may illegally remove from his position any employee of the city, and that notwithstanding such illegal removal the employee has practically no recourse
against the city for his salary during the time of his removal.
The merit system of selection and retention in their position of public employees, or what is commonly referred to as civil service, was first introduced into the United States by the federal government in 1886, and was gradually extended in its scope to include many states and municipalities. Phoenix was among the first of our cities to adopt such a system, and this court, in the case of Paddock v. Brisbois, 35 Ariz. 214, 224, 276 P. 325, 329, in speaking of it, said:
"That a [civil service] commission, with real power in the matter of appointments, promotions, demotions, and discharges, would be a fine adjunct to the city government, we have no doubt. As is said in the well-considered case of People v. McCullough, 254 Ill. 9, 98 N.E. 156, Ann. Cas. 1913B, 995:
"'... Positions in the public service are not the personal or political perquisites of any officer or party, and ought not be divided, after a political campaign, as so much loot of actual warfare, but... competency, merit, and fitness ought to be the standard for all appointments or promotions in the public service.'"
The original system adopted by Phoenix was weak in many points, and the voters of the city, therefore, in 1933 amended the civil service ordinance which had been previously in effect, and thus placed it beyond the [53 Ariz. 244] power of any of the city officials to change the law adopted by the voters themselves. Section 1, subdiv. 8, art. 4, pt. 1, Const. of Arizona. This ordinance is No. 715, and its material portions read as follows:
"Section 3. The Civil Service Board shall prescribe, amend and enforce rules for the classified service which shall have the force and effect of law after the same shall have been presented ...