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City of Tucson v. Simpson

Supreme Court of Arizona

April 2, 1958

The CITY OF TUCSON, an Arizona Municipal Corporation; Harlow Phelps, Richard A. Summers, Frank G. Gonzales, Everett F. Drescher, Dennis Weaver, Wilbur F. Conelly, members of the City Council of the City of Tucson; Fred Emery, Mayor of the City of Tucson; Civil Service Commission of the City of Tucson; B. T. Cheek, Ray Webb, and E. C. Monro, members of the Civil Service Commission of the City of Tucson; and Albert Hesselberg, Director of Personnel, City of Tucson, Appellants,
v.
Jay M. SIMPSON, Appellee.

[84 Ariz. 40] Charles C. Gatewood, Tucson, for appellants.

Mesch, Kemper & Jasper, Tucson, for appellee.

PHELPS, Justice.

This is an appeal from a judgment in favor of plaintiff Jay M. Simpson against the City of Tucson, a municipal corporation, in the sum of $1712.70. The parties will be hereinafter designated as plaintiff and defendant in the order they appeared in the trial court.

Page 690

The facts are that on April 1, 1952, plaintiff was employed in the Assessment Office of the City of Tucson as a clerk, later classified by civil service as Clerk II. The salary paid was $253.40 per month which plaintiff claims under the civil service rating was $286.40. In September of that year plaintiff wrote a paper entitled 'The Case for the Lowly Class I and II Clerk' and distributed copies thereof to officials of the Tucson city administration. Counsel for plaintiff describes this paper as a strong attack upon the recommendation for classification and pay changes in the personnel hired by the City of Tucson. It will serve no useful purpose to further relate the facts thereof.

On or about November 1, 1952, plaintiff received a termination notice in which he was advised that: 'Because of a material change in the organization of the Assessment Office, it will be necessary to lay you off as clerk in that department effective November 15, 1952. * * *' A slight change was ordered made in the Assessment Office by the city manager, in that the task of assessment collections, which consumed at most 15% of plaintiff's time, was transferred to the treasurer's office. Plaintiff's place was filled within two weeks by other employees over whom he had priority. Plaintiff procured employment with the Grand Central Aircraft Company in Tucson at $1.55 per hour for whom he worked for approximately four and one-half months, but plaintiff testified he didn't know how much he earned during that period, and, when counsel for defendant sought to elicit from plaintiff a more definite statement of his earnings, the court, when counsel for plaintiff interposed further grounds of objection, sustained the [84 Ariz. 41] objection upon the ground that there was nothing before the court. The evidence sought to be elicited would have been a proper deduction from what plaintiff would have earned with the city during such period.

Plaintiff accepted re-employment with the city on April 27, 1953, as Clerk I at a salary of $261.40 per month which he accepted under verbal protest to the personnel officer. On September 1 following, he was promoted to Clerk II at a salary of $264 per month. He received no additional increase in salary until September 1, 1954, at which time it was raised to $276 per month. Plaintiff filed his complaint in the instant action on November 5, 1954. In his complaint he sought recovery (1) for losses he claims he sustained caused by improper job classification of his work from September 1, 1952 until the time of filing suit, and (2) for complete loss of wages caused by allegedly improper dismissal from employment from November 15, 1952, until his reinstatement on April 27, 1954. Judgment was rendered as above stated and defendant has appealed. It has presented three assignments of error which raises four well-defined issues:

(1) Was plaintiff's cause of action controlled by the one-year statute of limitations?

(2) If so, was all or only a part of his claim barred?

(3) Had plaintiff exhausted his administrative remedies before bringing this suit, is not, did the court have jurisdiction to try the case.

(4) Did defendant have the right to introduce earnings of plaintiff during his employment with Grand Central Aircraft Company while wrongfully laid off by the city, and consequently, did the court err in denying defendant's motion for a new trial upon the ground that it had wrongfully sustained plaintiff's objection to its admissibility?

The assistant city attorney gave the director of personnel a legal opinion which stated that plaintiff had a cause of action against the city, under the circumstances, for compensation for the time he was separated from his position. Therefore, unless the court committed error in trying the case or plaintiff has failed to comply with the law in prosecuting his claim he should be entitled to damages in some amount.

Page 691

After a careful study of the issues raised and the records in this case we are of the view that a solution of the question of whether plaintiff exhausted his administrative remedies will make it unnecessary to discuss the other issues. Of course, if plaintiff did not exhaust his administrative remedies, the superior court was without jurisdiction to hear the case and its judgment rendered herein is void. Abelleira[84 Ariz. 42] v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715; Sanders v. Oklahoma Employment Security Commission, 200 Okl. 366, 195 P.2d 272. Let us examine the record.

The city charter provided for the appointment of a Civil Service Commission and prescribed its duties among which was, in substance, that all persons in the classified service were to be under and subject to the rules and regulations of the Civil Service Commission, and enjoined upon the Commission the duty to adopt rules and regulations for the administration of the charter provisions and the ordinances of the city governing the classified service; and further provided that whenever an appointing or employing officer removed, demoted or suspended an employee in the classified service without pay for a period of 10 days, or for periods totaling more than 10 days, or for disciplinary reasons reduces his pay or position (when the employee is permanently employed), he shall be given written notice and reason therefor, which notice shall also be given to the Civil Service Commission before the effective date thereof; that the Commission should be rules and ...


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