39 Wn.2d 262, RICHARD SCHULTZ, Appellant, v. THE CITY OF PASCO, Respondent

[No. 31746. Department Two.      Supreme Court      August 24, 1951.]

RICHARD SCHULTZ, Appellant, v. THE CITY OF PASCO,
                              Respondent.1

[1] MUNICIPAL CORPORATIONS - OFFICERS AND EMPLOYEES - SUSPENSION AND REMOVAL - RESTRICTIONS OF CIVIL SERVICE LAWS OR RULES - SERVICE OF CHARGES. Under a civil service rule providing that no permanent employee in the classified civil service shall be removed or suspended except for cause and only upon a written accusation of the appointing power or any citizen or taxpayer, which accusation shall be served upon the accused, service has the same meaning as service of civil process; and the transmission of a registered letter to the accused containing a copy of the accusation does not constitute such service.

[2] SAME - WAIVER OF SERVICE BY APPEARANCE. In such a case, it cannot be held that the civil service commission acquired jurisdiction of the accused's person and of the accusation by his appearance and participation in the hearing of the accusation before it, where it appears that the accused appealed to the superior court from the decision of the civil service commission confirming his suspension, that the superior court reversed such decision, and that the judgment of reversal was res judicata as to the invalidity of such hearing, which was the only one which was had; hence, the letter subsequently sent to him, purporting to serve notice of the accused's suspension and enclosing a copy of the accusation against him, was a new action and not a continuation or amendment of a pending accusation.


1 Reported in 235 P. (2d) 168.

[2] See 42 Am. Jur. 101.

 Aug. 1951]          SCHULTZ v. PASCO.           263

[3] APPEARANCE - JURISDICTION ACQUIRED - SPECIAL APPEARANCE TO CHALLENGE VALIDITY OF SERVICE - EFFECT OF SUBSEQUENT DEFENSE ON MERITS. A special appearance in which an accused objected to the jurisdiction of the civil service commission on the ground that there had been no service of the accusation upon him, is not waived by a subsequent defense on the merits.

[4] MUNICIPAL CORPORATIONS - OFFICERS AND EMPLOYEES - RIGHT TO COMPENSATION - EFFECT OF INVALID SUSPENSION. Where a suspension of a police chief was invalid because of lack of proper service of the accusation, he was not legally separated from the police force; and in an action by him against the city for wages due, where it appears that he had held himself ready to perform the services of his position up to the time of the trial, he is entitled to his wages until then.

Appeal from a judgment of the superior court for Franklin county, Hamilton, J., entered December 15, 1950, in favor of the defendant, in an action upon a claim for wages due, tried to the court. Reversed.

Edward G. Cross, for appellant.

Orville B. Olson, for respondent.

MALLERY, J. -

The plaintiff made claim for wages due and owing, as a police officer of the city of Pasco. It was rejected. This is an action brought on the claim.

The chief issue of the trial was whether or not the plaintiff had been legally separated from the police force of the city of Pasco. The trial court entered judgment for the city, but awarded plaintiff a hearing before the civil service commission upon the merits of the charges made against him by a letter dated June 28, 1948. The plaintiff appeals.

As an employee under the classified civil service of the city of Pasco, appellant's discharge is governed by Rule IX, 2, of the "General Rules and Regulations of the Civil Service Commission of the City of Pasco," which reads as follows:

"No person in the Classified Civil Service who shall have been permanently appointed or inducted into Civil Service under the provisions of said acts shall be removed, suspended, demoted or discharged, except for cause, and only upon the written accusation of the appointing power, or any citizen or tax-payer; a written statement of which accusation in general terms shall be served upon the accused

 264    SCHULTZ v. PASCO.     [39 Wn. (2d)

and a duplicate filed with the Commission. . . . " (Italics ours.)

[1] This case turns upon the question of what constitutes service under the foregoing provisions, which are substantially identical with Rem. Rev. Stat. (Sup.), 9558a-9. It should be stated at the outset that service in such a case means the same as service of civil process. Indeed, respondent concedes this point, but contends that there was substantial compliance with the ordinance, and that, in any event, the appellant waived service of the accusation by appearing in the proceeding.

On April 6, 1948, appellant received a letter by mail from the mayor of Pasco informing him of his suspension. On April 13, 1948, he received a second letter, which amended or amplified the first one. He then requested and was granted a hearing on April 19, 1948, before the civil service commission. He was represented by counsel and appeared specially for the purpose of objecting to the jurisdiction of the civil service commission, upon the grounds that there had been no service of the accusation upon him, and that the accusation was insufficient to justify a discharge. His objections were overruled, the commission proceeded to hear the matter and confirmed his suspension. The plaintiff then appealed to the superior court.

On June 22, 1948, the court reversed the decision of the commission by a general order. It was stipulated, however, that the reversal was based upon the grounds that the notice of suspension had not been served, and that the accusation was insufficient. No appeal was taken from this judgment. It, therefore, became res judicata as to the employment status of appellant up to that time. The prior civil service commission hearing of April 19, 1948, was invalidated for all purposes.

Thereafter, on June 28, 1948, the mayor of Pasco sent a letter to the appellant again advising him that he was suspended. He enclosed a copy of the accusations, which are admitted to be legally sufficient as a statement of charges against appellant. This letter was sent by registered mail,

 Aug. 1951]          SCHULTZ v. PASCO.           265

and the appellant signed a delivery receipt for it. It will be noted again that the city did not serve the appellant in the manner prescribed for the service of civil process.

On July 2, 1948, appellant deposited a letter, in the letter box at his residence, demanding a hearing upon the new accusations. It was never received by the civil service commission. No hearing was had. On June 19, 1948, appellant filed a claim with the city for his salary, which was denied. This second superior court action was then brought by appellant on his claim for wages.

After the trial on August 16, 1949, the trial judge died before rendering his decision. The case was submitted on the record by stipulation to the instant judge, who filed a decree in December, 1950.

[2] The respondent, while conceding that appellant was not served, contends that the commission acquired jurisdiction of his person and of the accusation, by his appearance and participation in the hearing before the civil service commission on April 19, 1948. This contention is without merit. The judgment of June 22, 1948, was res judicata as to the invalidity of the only civil service hearing had. Thus, the mayor's letter of June 28, 1948, purporting to serve notice of his suspension, is a new action and not a continuation or amendment of a pending accusation.

[3] Even if we could hark back to the invalid hearing, respondent would be confronted with appellant's special appearance therein, in which he objected to the jurisdiction of the civil service commission on the ground that there had been no service. His subsequent defense on the merits in that hearing, did not waive his special appearance. See Matson v. Kennecott Mines Co., 103 Wash. 499, 175 Pac. 181.

[4] Since jurisdiction to sustain a discharge was not obtained by the letter of June 28, 1948, it not being proper service, the appellant was not legally separated from the police force.

The record herein shows that, up to the time of the trial, appellant had held himself ready to perform the

 266    GORBULOVE v. BUTTNICK. [39 Wn. (2d)

services of his position. He is, therefore, entitled to his wages until then.

The judgment is reversed, and the trial court is directed to enter judgment according to this opinion.

SCHWELLENBACH, C. J., GRADY, HAMLEY, and WEAVER, JJ., concur.