APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Richard Minne, City Attorney, and Mr. George D. Locke, of Counsel, for Appellant.
Mr. James E. Nelson, for Appellee.
[61 Ariz. 459] McALISTER, C.J.
On January 6, 1942, Charles H. Wright filed his complaint against the City of Phoenix alleging that he had been employed by the city as assistant chief of police, at a salary of $250 per month; that he had performed the duties of such office; and that defendant had failed to pay him for the period from December 16, 1941, to December 31, 1941, and asked judgment for the sum of $125.
The city answered on the 26th day of January, 1942, and denied that the plaintiff was the duly appointed, acting and qualified assistant chief of police of the City of Phoenix; admitted that it had failed and refused to pay the salary sued for, and alleged that the plaintiff was a member of the Phoenix police force by virtue of a decree of the superior court of Maricopa County rendered on the 14th day of November, 1935. The city further alleged that the position of assistant chief of police was one in the classified service and that plaintiff had not taken the examination for said position as required by the rules governing civil service; that the city was ready, willing and able to pay the plaintiff the monthly salary to which he was entitled as a patrolman.
On April 4, 1942, the plaintiff filed a supplemental complaint in which, after setting up substantially the same allegations contained in the original complaint, he asked for judgment for salary from December 16, 1941, to January 31, 1942, at the rate of $250 per month, and from February 1, 1942, to March 31, 1942, at the rate of $263 per month, total $901, the salary having been duly and regularly increased on February 1, 1942, from $250 to $263 per month.
[61 Ariz. 460] The evidence discloses that on the 1st day of April, 1933, the said Charles H. Wright was duly appointed assistant chief of police and day captain in the police department of the City of Phoenix and that from that time continuously until the 1st day of June, 1934, he performed the duties pertaining to that office and regularly received a salary therefor; that on the first day of May, 1935, the city commission of the City of Phoenix passed an ordinance abolishing the office of assistant chief of police.
The record further shows that on December 9, 1940, the City of Phoenix enacted Ordinance No. 3205, reestablishing the position of assistant chief of police. The plaintiff, Charles H. Wright, had performed the duties of the office of acting chief and later chief of police of the city, but he was dismissed from the position of chief of police on December 5, 1941. Charges had been filed with the civil service commission against him and when he appeared before the civil service commission in response to the charges, the city manager withdrew them. He was exonerated from the charges and reinstated to his former position of assistant chief of police with full salary from December 5, 1941.
It is admitted that he performed all of the duties of the office from December 5, 1941, until March 31, 1942; that he was issued a regular police card by which he was designated as "Assistant Chief of Police" and was paid the salary of assistant chief from December 5 to December 15, 1941. During this time his name appeared on each semi-monthly payroll of the City of Phoenix which had been checked, in every instance, for names, rates and classifications by the civil service board and had been certified and approved by that board.
Despite the certification of the board, the city manager refused to allow payment of plaintiff's salary. [61 Ariz. 461] He assigned as the sole reason for this act a threatened lawsuit by a citizen of Phoenix, W. B. Williamson, who admittedly made such a threat and later retracted it when he discovered that he had not been given a "true picture of the situation."
The case was heard by the court without a jury and defendant city undertook to cross-examine the plaintiff, but in each instance the court sustained the objections to the questions. Thereupon, the defendant made a tender and offered to show that the original appointment of the plaintiff was an emergency appointment which continued until after the effective date of the civil service ordinance; that the plaintiff had never ...