State Ex Rel. Evens v. City of Duluth , 195 Minn. 563 ( 1935 )

Relator's petition for a rehearing is denied, but its authors are entitled to at least this much explanatory comment.

It is true that the decision probably does not follow the theory of the trial. For relator, the theory was that he was "summarily and arbitrarily removed * * * without cause, without notice, without charges being preferred against him and without a hearing and without an opportunity given to be heard." On the other hand, the city may have contended that the termination of his employment was justified by his relative inefficiency. Both ideas are wrong. As far as relative inefficiency goes, the evidence offered by the city on that point was excluded, and we know nothing about it; except for argument based on nothing in the record.

Relator wanted a peremptory writ of mandamus, and the premise of our decision was the established law that he could not have it unless it was the plain duty of respondents to do the act sought to be compelled. The record does show conclusively the facts concerning Ledingham's seniority over relator. That circumstance brings the case within the rule of C. M. St. P. Ry. Co. v. Sprague, 140 Minn. 1, 167 N.W. 124, under which we are compelled to disregard the theories of the trial and all of them because "the record shows conclusively as a matter of law that on the merits" relator is not entitled to the peremptory writ.

We assume that by its civil service rules the city has attempted to make the rule of relative efficiency a test. To the extent that runs counter to the soldiers preference law as amended by L. 1931, c. 347, 3 Mason Minn. St. 1934 Supp. §§ 4369-1 to 4369-3, it is, of course, without effect. Even so, if, in a given case, the city authorities disregard their own rules in favor of the seniority rule where it has such compelling equitable application as it has to the facts of this case, mandamus will not lie to reverse the decision. That is all there is to this case.

But one word more should be said. We are charged with going wholly wrong on both law and facts. As to the facts, the claim is that, contrary to our interpretation of the record, "the office of assistant fire warden was neither suspended nor abolished, nor does the appellant city so claim." All we know about that is what the record discloses. Relator's services were dispensed with "on account of the necessity of curtailment of expenditures in the fire department budget." At the same time he was notified that his name was being placed on the reëmployment list to be reinstated as soon as conditions warranted an increase of personnel. The position has not been refilled, but remains vacant. Those are the facts disclosed by the record. Counsel can characterize them to suit themselves.

But there has been so much argumentative assertion, unsupported by anything in the record, that the office is "still being filled" and has been "neither suspended nor abolished" that our decision should not be taken as a bar to a motion for a new trial upon the ground that, because of evidence newly discovered or otherwise, the relator should have that issue tried. Of course, if relators removal was simply to make way for someone else, he was wrongfully discharged. As already indicated, the record does not suggest that to be the case. We do not believe it is. But if relator can establish that contention, it can be done by a new trial confined to that issue, and our decision shall not be taken as a bar to an appropriate motion in the trial court.

AFTER REARGUMENT. On April 18, 1936, the following opinion was filed: