154 S.W.2d 815 | Ark. | 1941
On August 3, 1940, the appellants filed in the Ouachita circuit court a petition for mandamus *1008 against the members of the Board of Civil Service Commissioners and A. R. Lamb. The petitioners prayed that a writ of mandamus issue against C. C. Allen, Joseph Coan and W. A. Daniels, Board of Civil Service Commissioners, city of Camden, Ouachita county, Arkansas, ordering and directing them to proceed according to law and to answer in writing their doings on the first day of the next term of court, and that said A. R. Lamb, on final hearing of this petition, be ordered and directed to repay each and every dollar that he has drawn from the treasury of the city of Camden as salary of chief of police of the city of Camden, and for other proper relief.
Appellees filed demurrer and each of them filed answers. Evidence was heard by the court and a copy of Ordinance No. 356 was read in evidence. The ordinance is entitled: "An ordinance to abolish the office of chief of police in the city of Camden, Arkansas, and for other purposes," and it contains the following clause: "This ordinance being for the relief of the financially depressed condition of the city of Camden, an emergency is declared to exist, and this ordinance shall take effect from and after its passage."
The only question involved in this appeal is whether a writ of mandamus should be issued to compel the civil service commissioners of the city of Camden to hold an examination for the office of chief of police.
Ordinance No. 356, to abolish the office of the chief of police of the city of Camden, was passed on December 20, 1937, and the circuit court held that said ordinance had never been repealed or revoked, and that there was no basis for a writ of mandamus against the civil service commissioners of Camden directing the holding of an examination for an office which does not exist.
This court said in the case of Fiveash v. Holderness,
In the case of Satterfield, Mayor, v. Fewell, ante p. 67,
The above quoted cases are applicable here. There is no evidence in the record in this case that the council, in passing the ordinance, acted in bad faith or was guilty of wrongful conduct in the passage of said ordinance.
Appellants rely on Act 28 of the Acts of 1933, the act creating the Board of Civil Service Commissioners and defining the duties and powers of said Commission.
The Supreme Court of Washington said in the case of State, ex rel. Voris v. City of Seattle, et al.,
"A civil service act does not prevent the abolishing by the proper municipal authority of an office held by a civil service employee when done in good faith. And the placing of a position in the competitive class by the civil service commission will not preclude its abolition by the proper municipal authority." 43 C.J. 600.
The rule above announced is supported by many cases, among which are the following: Funston v. Dist. Sch. Bd.,
The city of Camden had the right, acting in good faith, to pass the ordinance abolishing the office of chief of police, and that ordinance being valid, mandamus will not lie to require the examination for an officer where the office has been abolished.
The judgment of the circuit court is affirmed.