APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Mr. Hess Seaman, City Attorney, Mr. William C. Fields, his Assistant, for Appellant.
Mr. George M. Sterling, for Appellee.
[54 Ariz. 364] LOCKWOOD, J.
Warren Sanner, hereinafter called plaintiff, brought suit against the City of Phoenix, a municipal corporation, hereinafter called defendant, to recover certain wages which he alleged were due him for the time he had been illegally discharged from the position of inspector in the street railway department of the city.
The allegations set up by the complaint were, in substance, that plaintiff at all times mentioned in his complaint was a duly certified railway inspector under the civil service rules of the City of Phoenix, and that notwithstanding his record entitled him to perform the duties of such inspector and receive the proper wages therefor, the defendant had refused to permit him to perform them, although he was at all times ready, willing and able to do so.
The city answered, alleging that during the time for which plaintiff sought to recover wages he was lawfully laid off and dismissed from duty, and further that he never at any time was a permanent civil service employee of the defendant, but was an employee by sufferance only, under a temporary emergency appointment, and, therefore, subject to discharge at will.
The case came to trial before the court sitting without a jury, and judgment was rendered in favor of plaintiff, whereupon this appeal was taken.
The real issue is stated by the defendant as follows:
"Did the plaintiff have a permanent civil service status during the period alleged in his complaint, or was he merely an employee at sufferance subject to dismissal or layoff at the will of defendant. If he was an employee at sufferance only he was not entitled to [54 Ariz. 365] judgment for salary accrued during the period alleged in his complaint."
and plaintiff accepted this issue with the corollary that if he did have a permanent civil service status during the period set up in his complaint he was entitled to the judgment which was rendered. We consider the case on the issues thus settled.
The issue for our determination then is, what was the civil service status of the plaintiff during the period in question. The record shows that plaintiff was originally appointed in 1932. He was dismissed in 1934, but reinstated by order of the civil service board. He was again laid off from service on August 1, 1935. He protested before the civil service board against this layoff and was ordered reinstated, which was done October 30th. He failed to report for duty and on December 11th he was again dismissed. He ...