32 Wash. 405 | Wash. | 1903
The opinion of the court was delivered by
On and prior to November 25, 1901, the respondent was an employee of the city of Seattle, appointed and qualified under its civil service rules and regulations, in the capacity of night clerk in the police department of said city. He claims that he is still such officer, and entitled to exercise his functions as such. The appellants Bandolph and Zimmerman, together with one Hughes, on the date named above, constituted the civil service commission of the city of Seattle, and the appellant Sullivan was at the same time chief of police of said city. On or about said date complaint -was made against respondent before said civil service commission, charging him with the maltreatment of one Dickinson and others. Said commissioners thereupon proceeded to conduct an. investigation, and cited respondent and others to appear before them. During the time of such investigation and afterwards, the said commissioners claimed and assumed to have absolute and discretionary power to dismiss .any employee of said city who was appointed and admitted to its service- under the civil service regulations, if in their opinion such employee had been guilty of any act properly calling for his dismissal. After completing the investigation aforesaid, the said commissioners, in
At the hearing in this court all questions as to whether respondent had adopted the appropriate remedy in the premises were waived. We shall therefore discuss and determine only the merits of the case. The question to be determined is, has the civil service commission of the city of Seattle power to dismiss or remove an employee in the classified service of the city, whose official appointment was made by the head of the police department of the city government. We are referred to § 12, art. 16 of the charter of the city of Seattle, which is as follows:
“Every officer or employee in the classified civil service .shall hold office until removed or retired. Any officer or employee in such service may be removed by the appointing power only upon the filing with the commission of a statement in writing of the reasons therefor. Any officer or employee so removed may, within ten days after his removal demand an investigation. The commission shall forthwith make such investigation and its finding and decision shall be certified to the appointing officer, and if the removal is not sustained thereby, the officer or employee so removed shall at once be reinstated. Nothing in this article shall limit the power of an officer to suspend without pay a subordinate for a period not exceeding thirty*409 days. In the course of any investigation each member of the commission shall have the power to administer oaths, and to require the attendance of any officer or employee or other person and the production of books and papers relevant to such investigation. The provisions of this section shall not apply to the removal of the chief of police.”
Appellants state in their brief that the court below reached the conclusion, from a consideration of the above section, that the sole authority to dismiss is vested in the chief of police. They insist, however, that the trial court’s interpretation of the language of the section is erroneous. It will be observed that the following sentence appears in the section: “Any officer or employee in such service may be removed by the appointing power only upon the filing with the commission of a statement in writing of the reasons therefor.” Appellants reason that the entire section relates to the removal of an employee by the appointing power, and that the word “only” in the sentence last quoted relates solely to the manner of removal, and does not exclude the right of removal by other corporate authorities. On the other hand, respondent reasons that the sentence provides for removal by the appointing power “only” and that such removal may be effected by filing with the civil service commission a statement in writing of the reasons actuating the head of the department in making the removal; that the remainder of the section gives the commission power to review the action of the removing power, and, unless his action be sustained by the commission, the removal shall not become effectual. It is contended that, if the commission were given authority in the first instance to remove, it would not have had imposed upon it the duty to review; that, since removals can be made by the “ap
We are referred to other sections of said art. 16' of the charter as authorizing removals by the civil service commission, but we think they cannot be so construed when considered in connection with said § 12. Section 4 provides that the commission “shall make rules to cany out the purposes of this article, and for examinations, appointments, promotions and removals in accordance with its provisions.” It is argued that, since the above authorizes the commission to make rules for removals, it follows that the. power of removal resides in the commission. It will be observed that the rules so made shall be for removals in accordance with the provisions of the wholé article, and, as we have seen, another portion of the article provides for removal by the appointing power.
“Unless otherwise provided by law or this charter, each officer, board or department • authorized to appoint any deputy, clerk, assistant, or employee, shall have the right to remove any person so appointed.”
Since we are not shown'any provision which seems to authorize removal by the commission, the above section, in connection with § 12, supra, appears to be conclusive that the power of removal is lodged with the head of the department who makes the appointment.
The right of removal inheres in the right to appoint, unless limited by constitution or statute. Shurtleff v. United States, 189 U. S. 311 (23 Sup. Ct. 535).
The above cited ease is a very recent one, and was decided April 6, 1903. The case involved the power of the president to remove an officer, appointed hy him with the advice and consent of the senate, for any cause not specified by act of Congress. The officer had been removed by the president without notice or opportunity for a hearing. It was contended that he could not be removed without such opportunity. It was held, if his removal had been sought on any of the grounds specified by Congress, he was entitled to such hearing before he could be removed, but that the power of the president to remove for other causes than those named by Congress and deemed by him to be sufficient inhered in the power of appointment, although it was made by. and with the
“It cannot now he doubted that in the absence of constitutional or statutory provision the president can by virtue of his general power of appointment remove an officer, even though appointed by and with the advice and consent of the senate. . . . The right of removal would exist if the statute had not contained a word upon the subject. It does not exist by virtue of the grant, hut it inheres in the right to appoint, unless limited by constitution or statute. It requires plain language to take it away. . . . The right of removal, as we have already remarked, would exist as inherent in the power of appointment unless taken away in plain and unambiguous language. This has not been done, and although language has been used from which we might speculate or guess that possibly Congress did intend the meaning contended for by appellant, yet it has not in fact expressed that meaning in words plain enough to call upon the courts to determine that such intention existed.”
It is thus held that the power of removal inheres in the power of appointment, and further that it cannot he taken away except by the use of plain and unambiguous statutory language. As we have seen, the city charter of the city of Seattle contains no language that can he said to be so plain and unambiguous that it takes the power of removal from the appointing officer and vests it in the civil service commission.
The object of the civil service regulations seems to he to provide a system for the selection of capable officers, uninfluenced by mere personal or political consideration. The test of efficiency is usually made by a system of examinations such as the civil service commission of the city of Seattle is authorized to conduct. These examinations relate to intellectual qualifications, and perhaps in some measure to other fitness in the way of personal
Tbe chief of police, who alone had the power to remove respondent, did not remove him, but declined to do. so after investigating the matter. The civil service commission declared that he was removed by its action. The chief of police acquiesced in the action of the commission to the extent of not assigning respondent to duty, but he did not remove him.
The judgment must therefore be affirmed.
Fullerton, C. J., and Mount, Anders and Dunbar, JJ., concur.