WALKER, Superintendent of the Arizona Highway Patrol et al.
Rehearing Denied January 16, 1952.
Judgment of Superior Court reversed, order of merit system council upholding the discharge reinstated.
Fred O. Wilson, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., for appellants.
Cusick & Watkins, of Tucson, for appellee.
Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.
[73 Ariz. 130] On September 19, 1949, Waldon v. Burr, appellee herein, then a captain in the highway patrol, was notified by the superintendent of the Arizona Highway Patrol that he was discharged, effective September 30, 1949. At the same time he was advised of his right to have the action of the superintendent reviewed by the Merit System Council, and accordingly Burr filed his notice of appeal with the Council. The appeal was set for hearing in Phoenix, Arizona, on October 28, 1949. Burr appeared at the hearing with his attorney, and took part in the proceedings. Although the Council subpoenaed witnesses for Burr, they did not appear at the hearing for the reason, as stated by counsel for Burr, that their fees were not advanced.
The matter was submitted to the Council after testimony was taken and no request was made by Burr for a continuance to secure witnesses who did not appear, nor was there any avowal as to what they would testify to had they been present.
On November 5, 1949, the Council entered its decision and order affirming the action of the superintendent in discharging appellee. On November 23, 1949, Burr petitioned the superior court of Pima county for a writ of certiorari to review the action taken by the Council.
[73 Ariz. 131] The granting of the writ was followed by an order to show cause, and the matter was submitted to the court on the record made before the Council.
Briefs were submitted and on May 10, 1950, the superior court entered judgment in favor of Burr, on the ground "that the Plaintiff did not have a fair hearing before the Merit System Council, under Section 66-701d, in that no witnesses were available at the hearing to testify on behalf of the Plaintiff", thereby declaring
the proceedings before the Merit System Council null and void ...