Kay v. Portland

Mr. Justice McBride delivered the opinion of the court. 1. There is no bill of exceptions in this case, and the [152] only matters before ns are the pleadings and findings of the court: Lewis v. Clark, 66 Or. 461 (134 Pac. 1194). 2. This narrows the case down to a single issue: Was the plaintiff a probationer within the meaning of Sections 313 and 317 of the charter? If he were not, his discharge without a hearing was, under the circumstances shown in the complaint, unjustified. The sections referred to, so far as they affect the present proceeding, are as follows: “Whenever there shall be a vacancy in any position in the classified civil service, the appointing authority shall immediately notify the commission thereof. The commission shall thereupon certify to such appointing authority the names and addresses of the three eligible candidates standing highest upon the register for the class or grade to which such position belongs, but, if there be less than three, the commission shall so certify all such candidates upon the register. When vacancies exist in two or more positions of the same class in the same department at the same time, the commission may certify a less number than three can-. didates for each position, but those certified must be the eligible candidates standing highest upon the register. The appointing authority may require the candidate so certified to come before him, and shall be entitled to inspect their examination papers. The appointing authority shall appoint to each vacant position, on probation for a period to be fixed by the rules, one of the candidates so certified. Within such period, the appointing authority may discharge such' probationer, and, in like manner, appoint another of such candidates, and so continue until all said candidates have been so appointed; but the appointing authority must make permanent appointment from said list of candidates unless, upon reasons assigned in writing by the appointing authority, the commission consents to and does certify a' new list of candidates. If any probationer is not discharged within the period of probation, his appointment shall be deemed permanent. Any person who has been employed in any one depart [153] ment of the public service of the city for the six years immediately preceding the taking effect of this charter shall, upon making satisfactory proof of such employment to the commission, within thirty days after its appointment, provided the position which he occupies at the time this charter goes into effect is included in the classified civil service, be certified by the commission to the appointing authority for that position as entitled to appointment, and such appointing authority shall forthwith appoint said person to such position. The appointing authority shall immediately notify the commission of any appointment or discharge. * * No employee in the classified civil service who shall have been permanently appointed under the provisions of this article shall be removed or discharged except for cause, a written statement of which, in general terms, shall be served upon him and a duplicate filed with the commission. Such removal or discharge may be made without any trial or hearing. Any employee so removed may within ten days from his removal file with the commission a written demand for investigation. If such demand shall allege, or if it shall otherwise appear to the commission that the discharge or removal was for political or religious reasons, or was not in good faith, for the purpose of improving the public service the matter shall forthwith be investigated by or before the commission, or by or before some officer or board appointed by the commission to conduct such investigation. The investigation shall be confined to the determination of the question of whether such removal or discharge was or was not for political or religious reasons, or was or was not made in good faith for the purpose of improving the public service. The burden of proof shall be upon the discharged employee. On such grounds the commission may find that the employee so removed is entitled to reinstatement upon such conditions or terms as may be imposed, by the commission, or may affirm his removal. The findings of the commission, or such officer or board, when approved by the commission, shall be certified to the appointing officer and shall be forthwith enforced by such officer.” [154] Section 313 provides first for an examination of new candidates for positions in the various departments of the public service, and permits the commission to make a rule fixing the time for service upon probation, which in this instance is shown to be six months. For the protection of persons who had already been in the service for a period of six years immediately preceding the taking effect of the charter, it was provided, in substance, that if such person should within 30 days after the charter had gone into' effect make satisfactory proof of such service, he should be certified by the commission to the appointing authority as eligible to appointment and should be forthwith appointed to the position. It was evidently intended that this should be a permanent appointment, from which, under the provisions of Section 317, the person appointed could not be discharged without a hearing if he demanded it seasonably. That portion of Section 313 providing for appointment without examination of persons who had previously served for six years was by its terms temporary in its duration, and applied only to those officers or employees who should see fit to avail themselves of it within 30 days next succeeding the appointment of the commission. That period having long ago elapsed, it is inapplicable. It would seem to follow logically that plaintiff, having voluntarily resigned and severed his official relations with the city for a period of three years, cannot avail himself of this temporary rule, which by its own terms became inoperative 30 days after the appointment of the civil service commission, but must come in as a new applicant and a probationer. 3. Reference is made in the brief to certain rules of the civil service commission, but, as they are not set out or pleaded in the complaint, and are not brought here by a bill of exceptions, we cannot consider them. [155] Even ordinances of cities must be pleaded, as tbey are not subjects of judicial notice, much, less the rules of a subordinate branch of the city government. This view of the case renders a consideration of the other matters urged in the briefs of the respective counsel unnecessary. The judgment is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Harris concur. Mr. Justice Benson not sitting.