Dryden v. Daly

173 P. 667 | Or. | 1918

BURNETT, J. —

There is no cause of action stated against either Kaiser or Gray. It is charged that they were subordinates of Daly and there is nothing to show in any respect that they had any authority to employ or discharge the plaintiff or to exercise any discretion or'control in respect to him. As to them, the writ might as well have been issued to any other employee of the city.

1. It is a principle of pleading that the pleader should state facts rather than conclusions of law. Litigation may be likened to a syllogism wherein the major premise is the law of the land which need not be stated because it is already known to the court. An apparent exception to this statement is found in the rules about pleading a private statute or a town ordinance under Sections 89 and 90, L. O. L. It has also been held in apparent exception to this rule that the court will not take judicial notice of municipal enactments by the initiative process: Birnie v. La Grande, 78 Or. 531 (153 Pac. 415); Chan Sing v. Astoria, 79 Or. 411 (155 Pac. 378); Rusk v. Montgomery, 80 Or. 93 (156 Pac. 435); Dennis v. Willamina, 80 Or. 486 (157 Pac. 799).

The allegations of the pleader correspond to the minor premise and must consist of the facts upon which the pleader relies to lead to the desired conclusion of the syllogism which should be embodied in the judgment. It is quite insufficient to state conclusions of law in the pleading or minor premise: State v. Chadwick, 10 Or. 423; Parker v. Thomson, 21 Or. 523 (28 Pac. 502); O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004); Mellott v. Downing, 39 Or. 218 (64 Pac. 393); Zorn v. Livesley, 44 Or. 501 (75 Pac. 1057); State v. Malheur County Court, 46 Or. 519 (81 Pac. 368); Darr v. Guaranty Loan Association, 47 Or. 88 (81 Pac. 565); Van Buskirk v. Bond, 52 Or. 234 (96 Pac. 1103); Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329 (106 Pac. 447); Jackson v. Stearns, 58 Or. 57 (113 Pac. 30, Ann. Cas. 1913A, 284, 37 L. R. A. (N. S.) 639); Morton v. Wessinger, 58 Or. 80 (113 Pac. 7); Long v. Dufur, 58 Or. 162 (113 Pac. 59); Moore v. Fowler, 58 Or. 292 (114 Pac. 472); Proebstel v. Trout, 60 Or. 145 (118 Pac. 551); McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33); Splonskofsky v. Minto, 62 Or. 560 (126 Pac. 15); Scholl v. Belcher, 63 Or. 310 (127 Pac. 968); Shipman v. Portland Construction Co., 64 Or. 1 (128 Pac. 989); Equi v. Olcott, 66 Or. 213 (133 Pac. 775); Purdin v. Hancock, 67 Or. 164 (135 Pac. 515); Barnard v. Houser, 68 Or. 240 (137 Pac. 227); Gibson v. Kay, 68 Or. 589 (137 Pac. 864); Templeton v. Cook, 69 Or. 313 (138 Pac. 230); Farrell v. Kirkwood, 69 Or. 413 (139 Pac. 110).

2. The statement “that the position of calker and the position of meterman and tapper are positions within the definition of said Class K and that plaintiff and petitioner was duly examined, classified and appointed as required by the charter provisions and rules and regulations of the Civil Service Board of the City of Portland” is a mere conclusion of law. There is no magic in those names by which the court is informed judicially of the duties pertaining to such positions. The ultimate fact should be put into the pleading so that the court may be enabled to draw the conclusion that they are in the category referred to and the same principle applies to the classification and appointment mentioned.

3. The writ seems to indicate that different casts of employees have been established by the civil service regulations of the City of Portland. Wherein one differs from the others is not portrayed in the writ. If the calker is not allowed to handle a pick, shovel or spade, but, on the contrary, must use only a drill, wrench or hammer, it should be stated so that the court may know in which classification the plaintiff stands. It is not stated except in the form of a conclusion that the other men were employed' at work exclusively referable to the classification under which the plaintiff claims. For aught that appears, the other employees were put at labor entirely different from that for which the plaintiff was classified. Neither does it appear that the city had work at the time requiring the services of one skilled as the plaintiff claims he was. It is not pointed out what control the defendant Daly had of the plaintiff as an employee, neither is it indicated what step or process should he taken by Daly in order to pay the plaintiff if he was so employed; neither is it shown that there was any fund available for the payment of the plaintiff at the time of which he complains. The writ, which constitutes the only initiatory pleading on the part of the plaintiff under Sections 618, 619 and 620, L. O. L., must clearly indicate a present unperformed duty on the part of the defendant requisite for the preservation of the rights of the plaintiff. It is not aided by the petition either in the original or supplemental form: State v. Williams, 45 Or. 314 (77 Pac. 965, 67 L. R. A. 166); State v. Malheur County Court, 46 Or. 519 (81 Pac. 368).

4-6. Moreover, as it appears without controversy that prior to the hearing the plaintiff had been restored to employment, the court was not required to do the vain thing of issuing a peremptory writ for the accomplishment of something which had already been performed. This is within the principle of such cases as State v. Webster, 58 Or. 376 (114 Pac. 932), State ex rel. v. Fields, 53 Or. 453 (101 Pac. 218), and other like precedents. Even so late as when the cause reaches this court on appeal, such a state of facts may be made to appear by affidavit and the court will decline to proceed further. Conceding that the plaintiff was wrongfully deprived of his employment, he has ample remedy at law by an action against the city, under the authority of Ransom v. City of Boston, 192 Mass. 299 (78 N. E. 481, 7 Ann. Cas. 733). The plaintiff has cited this case in support of his present contention, but it is not parallel, for that was an action of contract brought against the city to recover wages which the plaintiff would have received if he had been employed continuously by the defendant within certain days mentioned. Mandamus is not to be used primarily for the collection of debts. The result is that the judgment of the Circuit Court is reversed and the writ dismissed.

Reversed and Writ Dismissed.

McBride, C. J., and Bean, J., .concur. Harris, J., concurs in the result of this opinion.