Ryan v. Handley, No. 6047

No. 6047 | Wash. | Jul 24, 1906

Dunbak, J.

The appellant was a member of the fire department of the city of Spokane. On .the 29th day of July, 1905, the captain of 2Jo. 1 station of the fire department preferred charges against him, (1) for failing to report on duty at 7 p. m., July 25, after his regular twenty-four hours off, and (2) for failing to respond to alarm from the Spokane Laundry, July 25, and for going to bed at station without his night clothing in proper place. The appellant was cited to appear before the board of fire commissioners and did appear, and admitted the charges made, but sought to excuse himself by showing what he deemed were extenuating circumstances-. The board, however, were not satisfied with the explanations, and dismissed him from the department; whereupon he petitioned for a writ of review. In accordance therewith a temporary writ of review was ordered by the court and return made thereto-. There was also a motion interposed by the respondents to dismiss the- writ and the application, for the reason that the affidavit of the appellant failed to state facts sufficient to- entitle him to- any relief. Upon hearing that motion, the court dismissed the application and dismissed the action, and gave judgment against the appellant for costs. This appeal is taken from that order.

The assignments are that the court erred in dismissing the writ of review, in-not granting the writ of review, and entering judgment against the appellant. The affidavit assailed by the motion, after setting forth the proceedings as we have indicated, charges that the acts and rulings of the- hoard were illegal for the following reasons: (a) The charges preferred against the plaintiff do not constitute misbehavior, incompetency, or inefficiency; (b) there was no evidence- to support the charges preferred or any other charges.; (e) the -only evidence offered was the uncontradicted testimony of plaintiff which fully exonerated plaintiff; (d) the plaintiff was removed from his employment and thereby deprived of his property without due process of law.

As to paragraph (a), it, would seem that the charges preferred, if true, would constitute either misbehavior, incomp'etency, or inefficiency. As to¹ the allegation that there was no evidence to support the charges preferred, the charges were admitted, and there was no necessity for any further evidence; the only question being whether .the excuse offered by the appellant for the alleged omissions of duty was sufficient to exonerate him. It is said in paragraph¹ (e) of thei affidavit that these explanations fully exonerated the plaintiff. But that was a question to be determined, not by the plaintiff, but by the board of fire commissioners. Allegation (d), of course, is a pure conclusion of law. There is no« allegation in this affidavit that the firei department refused to enter into an examination of the charges preferred, or that they capriciously and maliciously or fraudulently decided the issues against the appellant; and while; under some circumstances, the actions of boards of this kind might be reviewed, yet, when it is taken into consideration that the charter provides that in cases of this kind the charges shall be established to the satisfaction of the board, with' the further provision that the board of fire commissioners shall be responsible for the efficient working of the department, we think that, when charges have been regularly preferred, opportunity given to defend against such charges, and the board has exercised its discretion in passing upon such' charges, their judgment in that respect is not subject to review.

The judgment, is therefore affirmed.

Mount, C. J., Root, Chow, Hadley, Rudkin, and Fullerton, JJ., concur.