1 Reported in 262 N.W. 681, 263 N.W. 912,266 N.W. 736. The city of Duluth appeals from a judgment awarding relator Evens a peremptory writ of mandamus for his reinstatement as an assistant fire warden in that city.
Relator was honorably discharged from the navy June 27, 1921, after well serving his country during the World War. January 1, 1930, successfully passing a civil service examination, he was appointed one of two assistant fire wardens of the city. The other was one William Ledingham, who became a member of the Duluth fire department September 1, 1911. In October, 1923, in the line of duty, Ledingham was seriously injured. He was temporarily blinded in both eyes and has entirely lost the sight of one. As a result, he was out of service for one year. September 17, 1924, he returned and was appointed assistant fire warden. If his earlier service be ignored, he was still senior to relator by more than five years.
As of October 1, 1933, and "on account of the necessity of curtailment of expenditures in the fire department budget," Evens was notified that his services would be dispensed with but that his name would be placed "on the reëmployment list," and that "as soon as conditions permit an increase of personnel, your reinstatement will be made." There is no evidence impugning either the assigned factual basis or the good faith of the discharge. *Page 565
The place so vacated has not been refilled. As far as the record discloses, the position has not been abolished but rather and only suspended. There is claim that the work formerly done by Evens is now performed by captains of the fire department specially detailed for that purpose. But undisputed evidence shows no change of procedure in that respect. The chief of the fire department testified, in effect, that for a long time it had been the practice to require the captains, in turn and as part of their regular duty, to make inspection tours once a year of their districts of the same kind as those of the assistant fire wardens. The idea is that they should become personally familiar with conditions, as to fire risk and conflagration hazard, in their districts.
1. As premise for our decision is the proposition thatmandamus does not lie unless it be "the clear and unquestioned duty" of the officer or officers in question "to do or not to do the act, without reference to any order or writ of any court." Lauritsen v. Seward, 99 Minn. 313, 326, 109 N.W. 404,410; State ex rel. Schwartzkopf v. City of Brainerd, 121 Minn. 182,141 N.W. 97, 46 L.R.A.(N.S.) 9; see also 4 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) § 5756.
2. The record falls far short of demonstrating that, as against Ledingham, relator had the right "clearly and unquestionably" to remain the one assistant fire warden of Duluth. That is because the former was senior to relator to the very substantial extent already noted.
The opposing argument falls under the rule of State ex rel. Boyd v. Matson, 155 Minn. 137, 193 N.W. 30. It was there held that the soldiers preference act, 1 Mason Minn. St. 1927, §§ 4368-4369, "does not authorize the removal of a prior appointee to make a place for a soldier, nor abrogate civil service rules giving precedence to appointees in the order of their appointment." The only difference, in respect to seniority, between that case and this is that there the elder right had been explicitly declared by civil service rules. But what a municipal council may do under formal written rules of its own making it may do also under an unwritten rule of conduct, where the latter is such a well-recognized principle of economic and industrial action as that which gives priority to a senior over *Page 566 a junior employe, when one must leave the common employment, not because of incompetence or relative inefficiency, but solely on account of a reduction of force.
Had there been but one assistant fire warden and Ledingham the holder of the job, relator's service right would not have entitled him to insist that Ledingham be ousted to make way for him. "No one would seriously contend that the veterans preference act requires the discharge of nonveteran employes so that vacancies might be created to permit the initial appointment or employment of qualified veteran applicants." Swantush v. City of Detroit, 257 Mich. 389, 395, 241 N.W. 265,267, 268. In legal content and result, the same problem was presented when the necessity arose for terminating the service of one of the two men. We have no occasion now to pass upon the situation that would have arisen had they possessed the same rights of seniority and relator had been let out on the ground of relative inefficiency. See Rounds v. City of Des Moines,213 Iowa, 52, 238 N.W. 428.
Rights of seniority are not mentioned in the statute. But everywhere, in all well-regulated employments, they are long and well established and rest upon obviously sound policy, well calculated to promote industrial peace and justice. That policy the statute does not alter expressly. To cause it to do so by interpretation would carry it beyond its intended scope by a forced and artificial implication, a result which condemns the process by which it is reached.
Nobody more than a service man should be able to understand, and unable to disapprove, the seniority rule where justly applied. Doubtless relator himself, who was a boatswain's mate, would have felt much and justly aggrieved if, in the navy, one of his juniors in the same grade had been preferred for promotion, especially if (as was Ledingham's case) relator had been wounded in action and his service record otherwise more distinguished than that of the promoted junior.
3. The mandate, 1 Mason Minn. St. 1927, § 4369, that no employe with a service record "shall be removed from such position or employment except for incompetency or misconduct shown after a *Page 567 hearing, upon due notice, upon stated charges," has no application where the office is removed from the occupant, instead of his being ousted from the office. As already stated, the office here was suspended. Relator was not removed to make way for another. The statute just quoted has no application to such a case. Lyon v. Civil Service Comm. 203 Iowa, 1203,212 N.W. 579, 583; Swantush v. City of Detroit, 257 Mich. 389,241 N.W. 265. There was no charge of incompetence or misconduct against relator. The simple fact was that the office itself was suspended for lack of funds.
In accordance with the views above expressed, the judgment must be reversed and the writ discharged.
So ordered.
UPON APPLICATION FOR REARGUMENT. On December 13, 1935, the following opinion was filed: