J. D. DUNSHEE, Petitioner,
G. F. MANNING, as Superintendent of Public Health of the State of Arizona, Respondent
Original proceeding in Mandamus. Alternative writ made peremptory.
Mr. Noal R. Gray and Mr. E. G. Frazier, for Petitioner.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Respondent.
[59 Ariz. 431] McALISTER, J.
On May 8, 1942, the court ordered issued an alternative writ of mandamus directing G. F. Manning, as state superintendent of public health, to approve the salary claim of the petitioner, J. D. Dunshee, as an employee of the public health department of the State of Arizona, or show cause why he has not done so. He did not approve the claim but in his return gave the reasons why. Along with the return he filed a motion to quash the alternative writ and dismiss the petition upon the ground that this court has no jurisdiction of the matter in that the petitioner has a plain, speedy and adequate remedy at law.
The matter is submitted to the court upon the uncontroverted allegations of the pleadings and an agreed statement of facts, and these in substance are as follows: The petitioner, J. D. Dunshee, a resident of Arizona, was employed on, July 1, 1940, as local health director, at a salary of $375 per month, by the then Arizona superintendent of public health, Fred P. Perkins. The respondent, G. F. Manning, was not then, but at all times since July 1, 1941, has been, the duly appointed and acting superintendent of public health of Arizona.
[59 Ariz. 432] The petitioner was employed under, and governed by, certain rules and regulations of the merit system, adopted by the Arizona state board of health on June 4, 1940, which have been in operation since that date. On September 25, 1940, Fred P. Perkins, then the duly appointed and acting superintendent of public helath, left Arizona for service in the national guard and thereafter attended the surgeon generals' conference at Washington, D.C., for public health superintendents, purportedly as superintendent of public health of Arizona, on various occasions held conferences with officials and employees of the Arizona health department and by periodically returning to Arizona attempted to hold the office of superintendent of public health of the state and exercise the duties thereof. In an opinion rendered by this court on March 2, 1942, Perkins v. Manning, ante, p. 60, 122 P.2d 857, it was held that Perkins vacated the office of state superintendent of public health on September 25, 1940, by accepting the office of major in the national guard and leaving the state to perform the duties of that office. However, no successor to him was appointed until July, 1, 1941, and on March 24th, prior thereto, he told petitioner to get himself another job, changed the locks on the door of the office occupied by petitioner, and denied him access thereto, and from then on to June 30, 1941, the petitioner devoted his full time and attention to other activities for which he received no compensation and performed no service in behalf of the state public health department, but would have done so had it not been for the action of Perkins, for he was at all times ready and willing to attend to the duties of his employment.
The petitioner failed to receive his salary for any of the period March 24 to June 30, 1941, and on April 27th, thereafter, presented his claim therefor, in the sum of $1,209.67, to the respondent, who refused to [59 Ariz. 433] approve it. During the period covered by this salary claim, respondent
was in no way connected with the state board of public health but was director of the health service of Coconino County, Arizona, and if called as a witness would testify that he does not have any knowledge of the rendition of the services by the petitioner upon which the claim is based, and that he could not swear that petitioner had performed the services indicated upon said claim.
The contention of petitioner is that the action of Perkins discharging him was void and of no effect because: First, Perkins was not at the time he took this action the superintendent of public health; second, that even if he had the right to take such action, he did not, in doing so, comply with the rules and regulations of the merit system under which the petitioner had been employed and was then working. Inasmuch, therefore, as the order of dismissal was void and the petitioner stood ready and willing at all times thereafter to perform the duties of his employment, he contends that he is entitled, under the merit system, to his salary for the period involved.
Respondent, on the other hand, takes the position that Perkins did act within his powers in discharging petitioner; that he was not employed under a merit system but if it be held he was, he did not pursue the remedy prescribed therein to have the order dismissing him reviewed and set aside.
While it is true that Perkins did vacate the office of superintendent of public health on September 25, 1940, by accepting the office of major in the national guard and leaving the state to perform the duties thereof, the record discloses that by correspondence and occasional trips to Arizona he still discharged the duties of that office and that it was while here on one of these return trips that he discharged petitioner. There would appear to be no question but [59 Ariz. 434] that under the facts he was at least the superintendent of public health de facto, though not de jure, Annotations to 100 A.L.R. 1187, and, hence, that his act discharging ...