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McNeill v. Marberry

Supreme Court of Arizona

May 28, 1951

McNEILL et al.
v.
MARBERRY

Reversed with directions.

Jack Choisser, City Atty., Laurence H. Whitlow, James J. Cox, Jr., and Jack D. H. Hays, Assts. to City Atty., all of Phoenix, for appellants.

Aaron Kinney, of Phoenix, for appellee.

Udall, Chief Justice. Stanford, C. J., and Phelps, De Concini and La Prade, JJ., concur.

OPINION

Udall, Chief Justice.

[72 Ariz. 129] The sole question presented by this appeal is whether the trial court erred in holding that the members of the civil service board of the city of Phoenix, respondents-appellants, acted without or in excess of their jurisdiction in sustaining the dismissal from service of Hobert Marberry, petitioner-appellee, a bus operator in the department of transportation of the city of Phoenix.

The Phoenix city manager by an order in writing dismissed petitioner, a civil service employee, from his job for the reason that Marberry had allegedly five times violated a lawful and official regulation, to wit: Rule 42(b) of the rules of the civil service board, the material part of which reads: "Operator's Responsibility

"Operators are held responsible for: * * *

"(b) Collecting and proper accounting of all fares and tickets."

Page 755

Petitioner after his dismissal employed counsel and, following Rule VIII of the procedure outlined in the board's rules, filed an answer denying the charge and requested a hearing before the civil service board. This request was granted and the record before us contains a 90-page transcript of the testimony taken at such hearing. (It was a combined hearing of the charges against petitioner and two other bus operators who had been similarly discharged.) The members of the respondent board unanimously upheld petitioner's dismissal.

Petitioner subsequently obtained a writ of certiorari, Ch. 28, Art. 1, ACA 1939, to review the action taken, which it was alleged was not justified by the evidence presented and hence was beyond the board's jurisdiction. See City of Phoenix v. Sittenfeld, 53 Ariz. 240, 88 P.2d 83. The complete record of the proceedings was transmitted to the superior court. At the hearing before the court the rules of the city transportation system and of the civil service board were admitted in evidence by stipulation. After oral argument and the submission of briefs the court entered written judgment vacating and declaring void the order of dismissal. This appeal followed.

The unconflicting evidence upon which the dismissal was based shows that due to an appreciable non-seasonal drop in revenue, particularly on the transportation system "long runs", the Phoenix superintendent of transportation brought in from outside the city two experienced women "checkers". These women testified that on [72 Ariz. 130] three separate occasions, involving five fares, petitioner accepted from one of them the proper fare (35 cents each on petitioner's Litchfield Park run) without requiring them to deposit the fare in the fare box and that during the 45-minute run, to their knowledge, the driver did not place their fares in said box. They stated that part of the money (the smaller coins) given by them to the driver went into petitioner's "money changer" but that they were ...


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