Thompson v. Amis

493 P.2d 1259, 208 Kan. 658, 1972 Kan. LEXIS 489

• Court: Supreme Court of Kansas
• Decided: January 22, 1972
• Docket: 46,487
• Status: Published

Opinions

The opinion of the court was delivered by

Fatzeb, C. J.:

This appeal stems from a controversy over the discharge of a classified civil service employee.

The question immediately before the court is one of procedure involving jurisdiction. The facts material to the disposition of that question are first presented.

On August 1, 1968, the plaintiff, Lorene Thompson, was promoted to the position of Supervisor of Vocationl Rehabilitation for the Topeka State Hospital, and as of November 30, 1968, she was granted permanent status. On February 17, 1969, she was orally dismissed from her position by the Acting Director of the Division of Vocational Rehabilitation of the State of Kansas. The first written notice of her oral dismissal was given by letter dated February 19, 1969.

The plaintiff gave notice of her intention to appeal her dismissal by a letter dated February 20, 1969, directed to the Chairman of the Civil Service Board of the State of Kansas (the board), requesting a hearing with respect to the dismissal. The board, on March 27, 1969, and again on April 3, 1969, conducted a hearing in the matter. On April 3, 1969, the Board announced its decision which was made a part of its minutes, and reads:

“ ‘The hearing for E. Lorene Thompson, Vocational Rehabilitation Supervisor, Department of Social Welfare, was resumed at 10:30 a. m. At the conclusion of the hearing, it was the decision of the Board that the action of the appointing authority in dismissing Miss Thompson be sustained. The Personnel Director was directed to place the name of Miss Thompson on the eligible register for Vocational Rehabilitation Counselor for a period of one year.’ ”

The secretary of the Board directed a letter to the plaintiff reporting its decision. Thereafter, and on April 3, 1970, the plaintiff delivered a letter to the Director of the personnel division requesting that her term of eligibility be extended for a period of one year pursuant to K. S. A. 75-2942 ( 2). She also filed a motion for rehearing and reconsideration. The Board’s decision on that motion was reported in its minutes of May 11, 1970, and reads:

“ ‘The board reviewed the request for re-hearing for Lorene Thompson requested by Mary Schowengerdt, attorney for Miss Thompson. It was idle decision of the Board that it does not have jurisdiction over the matter.’ ”

Plaintiff’s counsel was informed of the Board’s decision by letter dated May 12, 1970. On May 21, 1970, the plaintiff filed two cases in the district court seeking relief from the decisions of the Board —one was a direct appeal; the other was an action in equity.

On June 3, 1970, the Board filed a motion to dismiss the action in equity on the ground it was immune from actions except on its contracts, and that plaintiff’s petition failed to allege the purported cause of action was based on contract. The board also filed a motion to dismiss the appeal for the reason the functions of the board were administrative, not judicial in character, and, therefore, not subject to review under K. S. A. 60-2101 (a).

On June 24, 1970, the plaintiff filed a motion for determination of the appropriate remedy — direct appeal, or action in equity.

At the hearing on the motion for the determination of the proper remedy, counsel for all parties agreed that the remedy was an action in equity for relief in the form of mandamus, and that the appeal statute (K. S. A. 60-2101 [a]) had no application. The court then ruled:

“All right. The motion of the plaintiff for a determination of an appropriate remedy then is sustained and it is determined that the proper method of attacking the legality or the propriety or correctness of a decision of the State Civil Service Board is through an independent action in equity which in this case has been brought in Case No. 113,185. But the court is not at this time determining the correctness of the remedy or the appropriateness of the facts alleged in the petition but only the fact that the Court does have jurisdiction in that case to consider the matters of dispute between the plaintiff and the State Board of Social Welfare. Now, do you have anything else to present on your motion in Case No. 113,185?”

Thereafter, the plaintiff filed a motion for judgment on the pleadings in the equity case. The motion was sustained, the court finding that plaintiff was entitled to be restored to her position as Vocational Rehabilitation Supervisor with the State Department of Social Welfare, and that she should be reimbursed for the salary which she had lost because of her wrongful dismissal.

Following a motion for rehearing and a motion by plaintiff for attorney fees, an order of summary judgment was entered on June 30, 1971, placing in the judgment the findings above mentioned, but denying plaintiff attorney fees.

The Board, the Department of Administration, and the Board of Social Welfare, all statutory agencies of the state of Kansas, appealed from the order reinstating the plaintiff to her position of Vocational Rehabilitation Supervisor and reimbursing her for lost salary. The plaintiff cross-appealed from the order denying her attorney fees.

The appellants contend that an appeal pursuant to K. S. A. 60-2101 (a) from the Board’s decision of April 3, 1969, was the only procedural remedy available to the appellee.

Before considering this question, we are met with the appellee’s contention the appellants took no appeal from the court’s order adjudging that the appellee’s remedy was by an equitable action and not by appeal under K. S. A. 60-2101 (a), but actually encouraged the district court to make such an order and they are now foreclosed from raising such an issue.

Ordinarily, trial errors in which a party acquiesces or encourages the district court to make cannot be raised on appeal. A party should not be permitted to assume an attitude in this court inconsistent with that taken in the court below. (Brown v. East Side National Bank, 196 Kan. 372, 376, 411 P. 2d 605; Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091, 80 A. L. R. 2d 166.) However, the rule above stated does not apply where the question is one of jurisdiction of the subject matter. If the district court had no jurisdiction, then this court has no jurisdiction. In Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P. 2d 457, we held:

"Where the district court had no jurisdiction of the subject matter of an appeal to it, this court does not acquire such jurisdiction by an appeal from a ruling of the district court.” (Syl. ¶ 2.)

This court will raise the jurisdictional question on its own motion. (Materi v. Spurrier, 192 Kan. 291, 387 P. 2d 221; Bammes v. Viking Manufacturing Co., 192 Kan. 616, 389 P. 2d 828; Hotchkiss v. White, 191 Kan. 534, 538, 382 P. 2d 325; Lira v. Billings, 196 Kan. 726, 414 P. 2d 13.)

The appellants argue the issue before us is one of jurisdiction. We agree. The district courts are expressly created by the Constitution of the state of Kansas and are given only such jurisdiction as may be provided by the Legislature. (Art. 3, § 6; State v. Jack, 69 Kan. 387, 392, 76 Pac. 911, affirmed 199 U. S. 372, 50 L. Ed. 234, 26 S. Ct. 73; City of McPherson v. State Corporation Commission, 174 Kan. 407, 411, 257 P. 2d 123.) If the district court had no appellate jurisdiction over the decision of the Board, then it had equitable jurisdiction to determine whether the Board’s acts were illegal, fraudulent, or oppressive. (Gray v. Jenkins, 183 Kan. 251, 326 P. 2d .) If the district court had appellate jurisdiction, then it had no jurisdiction in an independent equitable action to review alleged errors of the Board. (Pelican Transfer & Storage v. Kansas Corporation Commission, 195 Kan. 76, 402 P. 2d 762; Neeley v. Board of Trustees, Policemens & Firemens Retirement System, 205 Kan. 780, 473 P. 2d 72; Neagle v. Brooks, 203 Kan. 323, 454 P. 2d 544.) See, also, Northern Natural Gas Company v. Dwyer, 208 Kan. 337, 492 P. 2d 147, and Powers v. State Department of Social Welfare 208 Kan. 605, 493 P. 2d 590.

The appellee relies heavily on Gray, supra, where we said that the Board acts quasi-judicially, but that no statutory provision for appeal to the courts is made from an order of the State Civil Service Board, either under the Civil Service statutes, or under the code of civil procedure. The Gray case was decided in 1958. Following the decision in that case, the Legislature enacted the new code of civil procedure effective January 1, 1964, which specifically provided for appeals from Administrative Boards exercising quasi-judicial functions. (K. S. A. 60-2101 [a].) Insofar as here pertinent, that statute reads:

“A judgment rendered or final order made by a court or any other tribunal, board or officer exercising judicial or quasi-judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court. If no other means for perfecting such an appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that he is appealing from such judgment or order with such court, tribunal, board, or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such court, tribunal, board or officer to be prepared and filed with the clerk of the district court of the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require . . .”

It is noted the statute as written includes boards or officers exercising quasi-judicial functions.

In Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966, certain rules were laid down for determining whether an administrative agency performs legislative or judicial functions. We held:

“There is a distinction between the types of decisions rendered by different administrative agencies; and some such agencies perform judicial or quasi-judicial functions while others do not.

“In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.

“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.

“In applying tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer or agency which performs it, that determines its character as judicial or otherwise." (Syl. ¶¶ 1, 2, 3, 4.)

It may be added that quasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.

The Board is empowered by statute to hear appeals of dismissed employees and determine the reasonableness of the dismissal (K. S. A. 75-2949 [2]), and after considering the evidence, it may order reinstatement of the employee and the payment of loss of salary. (K. S. A. 75-2949 [3] [4].) The Board has authority to establish rules (75-2949 [5]); to conduct hearings; to administer oaths and taire testimony; to issue subpoenas to compel attendance of witnesses; to take depositions, and to require the production of documents pertinent to any inquiry or investigation authorized by the Civil Service Act (75-2932 [1-4]).

Giving consideration to the various provisions of the Civil Service Act and the plenary power lodged in the Board by the Legislature, we conclude it exercises quasi-judicial functions in the performance of its duties. That being the case, the procedure for appellate review in the district court provided in K. S. A. 60-2101 (a) was exclusive, and the appellee was required to invoke that procedure within thirty days after entry of the Board’s order of April 3, 1969, sustaining the action of the appointing authority dismissing her from service.

It follows the district court was without jurisdiction to determine the reasonableness of the Board’s order in the original action in equity, and it erred in rendering judgment granting the appellee relief.

What has been said renders unnecessary the determination of other questions raised by the parties.

The case is remanded to the district court with directions to dismiss the equity action.

It is so ordered.

Pkager, J., not participating.