
    Joe A. YATES, Jr., as Chairman of the Civil Service Board of the City of Miami, a municipality of and in Dade County, Florida, Woody Kepner, as Director of the Department of Publicity of the said municipality, and E. A. Evans, as City Manager of the said municipality, Appellants, v. Michael PALMINTIERO, Appellee.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    Olavi M. Hendrickson, John H. Smith and Robert M. Haverfield, Miami, for appellants.
    Britton, Hodges & Hyman, Miami, for appellee.
   HOBSON, Justice.

Appellee, at the time he was laid off from his job by appellants, had five years of service with the city of Miami and had attained permanent civil service status. Section 295.07, Florida Statutes 1947, F.S.A., provides that “preference shall be given to” certain veterans in retention in position by all municipalities in Florida; Appellee is a veteran within the purview of said statute, and contends that he was not given the preference mandatorily required thereby. Appellants, on the other hand, assert that appellee was given a preference.

Although F.S. § 295.07, F.S.A., was in full force and effect when appellee was laid off, ten other employees in his department were retained, although seven of them were non-veterans. The preference allegedly given appellee in determining who was to be laid off appears to have been based solely on the “lay-off score” comprised of the last “efficiency rating” a percentile figure of which one hundred would be the maximum, to which one point and a fraction was added for each year and part of each year of service. Under this method of determining who should be laid off, if a tie in lay-off scores existed it would be broken in favor of the employee with the longest employment with the city of Miami to a day, and if such tie should still remain unresolved, it would be broken in favor of the employee with the highest service rating average throughout his employment with the city.

Appellants alleged in their answer that on February 10, 19SS, which was seven months after appellee’s lay-off, and administrative interpretation was adopted as follows : “ * * * they take into consideration veterans’ status of employees to be laid off only when the lay-off score of two or more employees is identical, in which case they do place the veteran ahead of other employees with like scores who have no veterans’ status.”

It was agreed by the parties that the question before the circuit judge was whether this practice was a compliance with F.S. Section 295.07, F.S.A. and the Civil Service Rule (which is a verbatim copy of the statute) or whether this practice in fact was only a gesture which gave no real preference as contemplated by the statute and the Civil Service Rule.

In his petition for writ of mandamus, appellee charged that the lay-off order directed to him was illegal in that a preference, directed mandatorily by F.S. Section 295.07, F.S.A., was not accorded to him, and he prayed for a writ commanding a rescission of the alleged illegal lay-off order and further commanding the payment of lost wages.

As has been stated, appellee contends that the lay-off order, dated May 18, 1954, was illegal in that he had been given no preference although he is an ex-serviceman. The trial court agreed with this contention and issued a peremptory writ of mandamus directing Woody Kepner, as Director of the Department of Publicity of the city of Miami, “forthwith to rescind and cancel that certain lay-off order, dated May 18, 1954, insofar as it affects petitioner * *

The circuit judge further ordered the said Kepner, Joe A. Yates, Jr., as Chairman of the Civil Service Board of the city of Miami, and E. A. Evans, as City Manager of said municipality, “forthwith to do any and all things and to take any and all action which shall be necessary to effect the reinstatement of petitioner to his position as Custodial Worker I * * * and to pay to the petitioner, the sum of Three Thousand Eight Hundred Three Dollars and Fifty-two cents ($3,803.52) minus Five Hundred Eleven Dollars and Eighty cents ($511.80) representing the sum earned by the petitioner during period that petitioner was laid off by the respondents * * * ”

The question before this court is whether appellee was shown any preference whatsoever as required by F.S. Section 295.07, F.S.A.

It is clear that appellee sought as his first step a peremptory writ of mandamus directing that the lay-off order of May 18, 1954, be rescinded. The subsequent commands of this writ in our opinion were properly placed therein to give force and effect to the original command of the writ directing the rescission and cancellation of the said lay-off order.

Appellant contends that the trial court, by mandamus, sought to control the discretion of the Civil Service Board in ordering the reinstatement of the appellee. In La Gorce Country Club v. Cerami, Fla., 74 So.2d 95, the procedural situation was identical with that which now confronts us. Appellee in that case had been expelled from a club without notice or hearing and the trial judge had ordered him reinstated to membership because notice and hearing were required by statute as a prerequisite to expulsion. We affirmed the judgment below with the observation that the peremptory writ, commanding reinstatement, was in no way prejudicial to the position of the club on the merits of the controversy, i.e., the peremptory writ commanded reinstatement only because the mandatory requirements of the statute had not been observed. In the case before us it appears that the situation is the same and that the appellee should be reinstated at least unless and until the Civil Service Board can show that some preference was accorded to him which would comply with the requirement of the statute. We do not anticipate that this requirement is satisfied by the vague formula previously set forth herein, if only because this formula does not appear to apply to the appellee, and produces the result that no preference whatever is accorded to him.

As in La Gorce Country Club v. Cerami, supra, 74 So.2d 95, we do not mean to say that appellants do not have the right under the statute to promulgate a formula which in fact gives a preference to the ex-serviceman in the matter of being laid off as a city employee, but only that the showing made by the appellants in this case falls short of meeting the requirements of the statute. We are of the view that the learned circuit judge was eminently correct when he directed that the illegal order be rescinded, and that it was entirely proper to make the order effective by directing the appellee be reinstated and paid his back salary.

Affirmed.

ROBERTS, THORNAL and O’CON-NELL, JJ., concur.

TERRELL, C. J., and THOMAS and DREW, JJ., dissent.

THOMAS, Justice

(dissenting).

The appellee was awarded a peremptory writ of mandamus by the circuit judge commanding the appellants to reinstate him as “Custodial Worker I in the Publicity Department of the classified civil service with a permanent appointment and with1 permanent civil service status” and to pay him a sum of money equal to the amount-he would have earned between the time he-was laid off and the date of reinstatement,, less any money he earned in other employment during that time.

The salient facts may be taken from those-statements in the alternative writ which were admitted in the answer. The appellee was employed 20 June 1949 and on 19 January 1950 was permanently appointed' to the position of Custodial Worker I in the publicity department which made himi a member of the classified civil service. He received periodic advancements in salary until his compensation amounted to $297" monthly at the time his services were discontinued. On 18 May 1954 he was notified' by the Director of the Department of Publicity that, effective the last day of the following month, he would be laid off as am economy measure, the budget submitted for the year 195^1 — 1955 having been reduced’ from 85 to 65 thousand dollars. This-curtailment had made it necessary, so the director regretfully explained, to lay off two Custodial Workers I, of whom appellee was one.

The appellee was entitled to all the privileges and advantages of the classified civil service including the guarantee of Sec. 295.-07, Florida Statutes 1947, F.S.A., providing that “in retention in position in all * * * municipalities of the State of Florida, preference shall be given to * * * ex-servicemen * * * who have served on active duty in any branch of the armed forces * * * during any war” and who have been honorably discharged. Appellee had served in the United States Air Force from 9 August 1917 to 8 May 1919, when he was separated under honorable conditions.

He contended that no preference was shown him in recognition of his service in the armed forces, and the circuit judge agreed with him.

It was stipulated by the parties that in the event the discharge of one employee was contemplated and his “lay-off score” was the same as that of another employee and one was a veteran and the other a non-veteran, the Civil Service Board followed the procedure of retaining the former because of the preferential position given him in recognition of his service to his country.

The appellants take the position that inasmuch as the legislature, after directing, in Sec. 295.07, supra, that preference be given veterans in appointment and reemployment, and in retention of position, then specified in companion sections, 295.08 and 295.09, how the preference be applied in cases of appointment and promotion, but did not particularize about the manner of granting preference with reference to retention of a position once attained, the matter of preference in the case of lay off, or retention of position, was one left entirely to the discretion of the Civil Service Board. “Therefore” to quote from appellants’ brief, “the quantity of preference to be granted to veterans in retention in position, is entirely within the discretion of the Civil Service Board and mandamus will not lie to control that discretion.”

Adopting this premise, appellants devote considerable space to argument and citations relative to judicial control of an act that requires the exercise of judgment or discretion as distinguished from judicial control of an act that is purely ministerial.

It seems unnecessary to explore a legal principle that is so thoroughly established. The immediate question is whether or not the appellee was given any preference over a co-employee when it was necessary to discontinue the services of one of them. We should sympathize with the view that a board may not, in the face of a statute securing an advantage to ex-servicemen in the retention of their positions, properly exercise a discretion by withholding any preferential treatment at all.

Clearly under the statutes already cited, the ex-serviceman who applies for a position is given a certain number of points on his entrance examination and is likewise entitled to a certain number of points in an examination for promotion.

The rule adopted by the Civil Service Board of Miami to govern lay-offs appears to ignore the advantages secured to a former serviceman by Sec. 295.07, supra. It is provided in the rule that when the need arises to reduce the number of employees within a class in any department, they shall be laid off in the following order: “(1) Duration, emergency, or temporary appointees. (2) Probationary employees. (3) Permanent employees.”

The order of dealing with permanent employees is fixed by a “lay-off” score computed as follows: “The percentage grade of the last service rating is determined for all employees in the particular class and department.” To this is added a credit for seniority of 1% for each of the first five years and “for each year employed more than five (5) years.” Next comes this language: “A tie in said scoring shall be broken in favor of the employee with the longest service record.” “Should a tie still exist [presumably because of service records of the same length] it shall be broken in favor of the employee with the highest service rating average for the period employed” and the employee having the lowest “lay-off” score shall be discharged.

There does not appear in the rule a word referring to veterans but it appears in the transcript that it was the “practice” to give a veteran the preference if, after following the complicated procedure outlined, a tie should still exist between a veteran’s and a nonveteran’s score. So, according to the record, the veteran would eventually receive an advantage if in the final computation his score should be identical with that of a fellow employee who had not served in the armed forces.

The appellee contends that the preference granted a veteran by the procedure outlined in the rule is illusory and he exclaims: “When in heaven’s name would such a precise tie occur?” His consternation is easily understood but he has not shown clearly the right to the writ that was issued in this case. Even if it be assumed that he was entitled to more credit than he got for his service, it cannot be determined from the record why he had a right to retain his position when on the list showing total grades his score was 80, 75 for efficiency and S for seniority, while the score of the man whose name appeared immediately above his was 83, 80 for efficiency and 3 for seniority.

To say what method should have been used, in recognizing the appellee’s service in the armed forces, so that the margin of 3 should be overcome with the result that he would be preferred to the man whose name appeared ahead of his on the list, would require pure speculation.

From the very nature of mandamus indulgence in conjecture cannot avail one who must show a clear legal right to such a writ in order to be awarded one.

It is my view that the writ was improperly issued so I dissent.

TERRELL, C. J., and DREW, J., concur.  