Dougherty v. City of Parkersburg

76 S.E.2d 594, 138 W. Va. 1, 1952 W. Va. LEXIS 17

• Court: West Virginia Supreme Court
• Decided: September 30, 1952
• Docket: No. 10475
• Status: Published

Opinions

Riley, President :

In this proceeding in mandamus, instituted in the Circuit Court of Wood County by Harry S. Dougherty against the City of Parkersburg, a municipal corporation, Golden Underwood, its mayor, and R. H. Boice, Robert S. Widmeyer, and William A. Smith, members of the Civil Service Commission of the City of Parkers-burg, the respondents prosecute this writ of error to a final order of the circuit court, entered on December 11, 1951, commanding them to reinstate and restore the petitioner, Harry S. Dougherty, to his former position of lieutenant in the police department of the city of Par-kersburg.

The petitioner filed his petition in the circuit court, praying that he be awarded a writ of mandamus, commanding the respondents to “reinstate this petitioner to his former position of Lieutenant in the Police Department of the city of Parkersburg.” This petition alleges that the respondent mayor is authorized to make all appointments to the police department, except so far as his appointing power and confirmation may be restricted or governed by the provisions of Chapter 57, Acts of the Legislature, 1937, as amended (Michie’s West Virginia Code, Anno., 1949, 8-5A) ; that the respondents, the civil service commissioners have been acting under the authority ^of said Chapter 57, Acts of the Legislature, 1937, as amended; that the petitioner is less than sixty-five years of age, and, therefore, is not required by Section 20, Article 6, Chapter 93, Acts of the Legislature, Regular Session, 1945, to be retired from employment as a member of the police department of the city of Par-kersburg (Michie’s West Virginia Code, Anno., 1949, 8-6-20) ; that on August 2, 1949, the petitioner then having attained the rank of lieutenant, was notified by the respondent mayor, Golden Underwood, that “for reasons of economy”, petitioner was to be retired from the police department which retirement was to be effective on August 16, 1949; and that said reduction was in accordance with “Michie’s West Virginia Code of 1943, Serial Section 525(13)” (Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937) ; that Section 13, Chapter 57, Acts of the Legislature, Regular Session. 1937, provides “by necessary implication any policeman retired on pension for reasons of economy shall be reit stated to the Police Department from which he has been retired before any new appointments are made to the said Police Department, if and when it becomes necessary to again increase the number of policemen to the strength existing prior to the reduction in number for economy reasons”; that on July 13, 1950, petitioner made application to the respondent mayor for reinstatement to the police department in accordance with “Article 5A, Chapter 8 of the Code of West Virginia” (Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937) ; that it was the duty of the respondent, the City of Parkersburg, acting by and through its mayor and the respondents, the civil service commissioners, to reinstate the petitioner to his former position of lieutenant in the police department, which duty the respondents have failed and refused, and still fail and refuse, to discharge.

To this petition the respondents filed a joint and separate demurrer, which draws into issue the soundness of the petitioner’s interpretation of Section 13, Chapter 57, Acts of the Legislature, 1937, which demurrer was overruled. Thereupon, the respondents filed their join! and several answer, denying that they have failed and refused to discharge their duties as alleged in the petition; that when the respondent mayor and the Council of the City of Parkersburg, met as required on August 2, 1949, for the purpose of preparing the budget of the city of Parkersburg for the fiscal year 1949-50, it was deemed by them necessary “for purposes of economy” to reduce the number of paid members of the police department of the city of Parkersburg; .that on that date the petitioner was more than fifty years of age, and had been in continuous service in the police department of the city for more than twenty years, to wit, twenty-three years, and, therefore, under Section 20, Article 6, Chapter 93, Acts of the Legislature, Regular Session, 1945 (Michie’s West Virginia Code, Anno., 1949, 8-6-20), was eligible for retirement as a member of the police department with a pension of one hundred dollars a month during the remainder of his life; that the respondent, Golden Underwood, wrote a letter, dated August 2, 1949, notifying the petitioner that he was to be retired “for purposes of economy”, which letter is quoted verbatim in the respondents’ answer; and that pursuant to such notification the Council of the City of Parkersburg, on August 23, 1949, ratified the action of the board of trustees of the policemen’s pension or relief fund of the city of Parkersburg, by placing the petitioner upon the retirement roll of said city. Respondents’ answer alleges that petitioner was duly and legally retired and received specified retirement payments; that on July 13, 1950, the petitioner wrote a letter to the respondent mayor, quoted verbatim in the answer, applying for immediate reinstatement as a lieutenant in the police department of the city of Parkersburg; and, finally, the answer alleges the legal conclusion, perhaps not appropriate in the answer, that the provision of Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937, dealing with the reinstatement of police officers, applies only to members of a police department who have been “ ‘suspended’ pursuant to said Serial Section [13] and does not apply to members of said department who have been retired on pension.”

The answer contains in full a letter of the mayor, dated July' 18, 1950, directed to the Council of the City of Parkersburg, stating that “Being the appointing officer for the personnel of the police department”, the respondent mayor desired to appoint for a probationary period of six months to the police department four named applicants, who had been certified to him by the secretary of the civil service commission of the city of Parkersburg.

The factual allegations of the petition and the joint and several answer were amply sustained by evidence adduced on behalf of both petitioner and respondents, which evidence fully establishes that the petitioner has served as a member of the police department of the city of Parkersburg, in continuous and honorable service for more than twenty years; that he was at the time of his retirement, as well as at the time of the trial, slightly over fifty-three years of age; and that he is in good health and physical condition, and able to resume his duties as a lieutenant of the police department of the City of Parkersburg.

On the basis of the foregoing the circuit court granted the writ, commanding the respondents to reinstate the petitioner to his position as a lieutenant in the police department.

Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937 (Michie’s West Virginia Code, Anno., 1949, 8-5A-13), the statute under which the respondents sought to retire petitioner “for reasons of economy” reads, in part:

“* * * Provided, however, that if for reasons of economy or other reasons it shall be deemed necessary by any city or municipality to reduce the number of paid members of any police department then said municipality shall follow the following procedure:

“First: If there be any paid policemen eligible for retirement under the terms of a pension fund act, if such fund exists in said city or municipality, then such reduction in numbers shall be made by retirement on pension of all such eligible paid members of the police department;

“Second: If the number of paid policemen eligible for retirement under the pension fund of said city or municipality, if such pension fund exists, is insufficient to effect the reduction in numbers of said paid police department desired by said city or municipality, or if there is no eligible person for retirement under the pension fund of said city or municipality, or no pension fund exists in said city or municipality, then reduction in members of the paid police department of said city or municipality shall be effected by suspending the last man or men, including probationers, that have been appointed to said police department. Such removal shall be accomplished by suspending the number desired in the inverse order of their appointment: Provided, further, That in event the said police department shall again be increased in numbers to the strength existing prior to such reduction of members the said policemen suspended under the terms of this act shall be reinstated in the inverse order of their suspension before any new appointments to said police department shall be made.”

The prefix “in” to the word “sufficient”, which is italicized in the foregoing quotation, is not contained in Section 13, Chapter 57, Acts of the Legislature, Eegular Session, 1937, and therefore is not contained in Michie’s West Virginia Code, Anno., 1949. We have inserted it by italics in the foregoing quotation for the purpose of the appraisal of this case, because without such insertion Section 13, Chapter 57, Acts of the Legislature, 1937, would be unintelligible and would lead to an absurd result. We, therefore, are at liberty to interpret the statute to read as if the prefix “in” were contained in the statute, in order to effectuate the legislative intent. Harman v. Howe, 27 Gratt, (68 Va.) 676; Hutchings v. Commercial Bank of Danville, 91 Va. 68, 20 S. E. 950; Johnson v. Barham, 99 Va. 305, 38 S. E. 136; Hood v. City of Wheeling, 85 W. Va. 578, 102 S. E. 259.

Section 13, Chapter 57, Acts of the Legislature, Kegu-lar Session, 1937, providing for a reduction in the number of paid members of a municipal police department “for reasons of economy”, and Code, 8-6-20, as amended and reenacted by Section 20, Article 6, Chapter 69, Acts of the Legislature, 1935, and Section 20, Article 6, Chapter 93, Acts of the Legislature, 1945, which provide for the voluntary retirement of any member of a municipal police or fire department, who is entitled to the benefits of the pension fund, and who has been in continuous service for twenty years or more, and has reached the age of fifty years, should be read in pari materia, as reference must be had to the latter statute in order to appraise the former. These statutes are related and. to a large extent pertinent to the same subject matter. State v. Reed, 107 W. Va. 563, pt. 2 syl., 149 S. E. 669; State v. Hoult, 113 W. Va. 587, 169 S. E. 241.

In issuing the writ in mandamus, the Judge of the Circuit Court of Wood County, as disclosed by his written opinion, made a part of the record, held that three things are necessary to render petitioner “eligible” for retirement: (1) Petitioner must have been in continuous service for twenty years or more; (2) he must have reached the age of fifty years; and (3) he must have made written application for retirement to the board of trustees of the policemen’s pension fund; and on the basis that petitioner had not made á written application for retirement to the board of trustees, the circuit court held that he was not eligible for retirement, and could not against his will be required to retire.

In retiring the petitioner, the respondent mayor relied upon the act relating to the firemen’s and policemen’s pension or relief funds, Code, 8-6-20, as amended and reenacted by Section 20, Article 6, Chapter 69, Acts of the Legislature, 1935, and Section 20, Article 6, Chapter 93, Acts of the Legislature, 1945, the pertinent provision of which reads: “Any member of a municipal fire department or police department who is entitled to benefits of said fund, and who has been in the continuous service of such department for twenty years, and upon reaching the age of fifty years, may, upon written application to the board of trustees, be retired from all service from such department without medical examination or disability * *

Both the police civil service act, Chapter 57, Acts of the Legislature, 1937, and the act relating to the policemen’s and firemen’s pension or relief funds, Code, 8-6-20, as amended and reenacted by Section 20, Article 6, Chapter 69, Acts of the Legislature, 1935, and Section 20, Article 6, Chapter 93, Acts of the Legislature, 1945, are remedial in their nature. Sturm v. Secmonds, Mayor, 122 W. Va. 338, 9 S. E. 2d 227. And being read in pari materia, both statutes should be liberally construed in order to effectuate the underlying purposes thereof. Sturm v. Seamonds, Mayor, supra; Esque v. Huntington, 104 W. Va. 110, 139 S. E. 469; and Hasson v. Chester, 67 W. Va. 278, 67 S. E. 731. An underlying purpose of the police civil service statute is to give security to members of paid police departments of municipalities having a population of five thousand or more against the vicissitudes which always attend, in the absence of protective statutes, such as the police civil service act, political municipal elections.

The police civil service act of 1937, as this Court said in Ebbert v. Tucker, 123 W. Va. 385, 390, 15 S. E. 2d 583, provides for a complete and all-inclusive system for the appointment, promotion, reduction, removal and reinstatement of police ofiicers (except chiefs of police) and other employees of all police departments in cities and municipalities having a population of five thousand or more. The title to the act, Chapter 57, Acts of the Legislature, 1937, reads: “AN ACT to provide for the appointment and promotion of members of paid police departments in cities and municipalities; to provide for the creation and maintenance of a civil service commission for that purpose; to establish rules and procedure therefor; to regulate the manner in which demotions and discharge of employees of paid police departments shall be made, and the rights and limitations of said employees in that respect; to provide for other matters relating to the duties and powers of said civil service commission, defining its powers, limiting its authority, etc.; and providing penalties for the violation of the provisions of this act.” And Section 20 of the act provides: “* * * It is understood and intended by this act to furnish a complete and exclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers, policemen or other employees of said police departments in all cities and municipalities of five thousand population or more, wherein the members of the police department are paid.”; and definitely the Legislature provided in Section 1 of the act that “On or after the date this act takes effect no person except the chief of police shall be appointed, reinstated, promoted or discharged as a paid member of said department of any city or municipality in the state of West Virginia subject to the provisions hereof, in any manner or by any means other than those prescribed in this act.”

Only a casual examination of Section 13, Chapter 57, Acts of the Legislature, 1987, and Code, 8-6-20, as amended, and reenacted by Chapter 69, Acts of the Legislature, 1935, and Chapter 93, Acts of the Legislature, 1945, discloses that every paid member of a police or fire department, who has reached the age of fifty years, and who has been engaged in continuous service for twenty years or more in such department, has the right to retire voluntarily without medical examination or disability upon written application to the board of trustees of the pension fund for retirement from service in the department; and, by the same token, he cannot be compelled to retire “for economic reasons” or otherwise, unless he is sixty-five years of age, or physically or mentally unable to perform his duties. The remedial nature of the acts in question impels this Court to this conclusion, and the very fact that Section 20 of Code, 8-6, as amended, relating to the retirement of all paid members of police and fire departments of municipalities, subject to the act, requires compulsory retirement at the age of sixty-five years, confirms this Court in this conclusion. So we are of opinion that petitioner at the time of the attempt to place him on a retirement basis was not “eligible” for retirement, and would be eligible only if he had filed a written application for retirement, as provided by statute.

This Court does not for an instant impugn the high motives of the respondent mayor and the members of the civil service commission of the city of Parkersburg in retiring petitioner: we simply say that the requirements of the statute have not been met so as to justify such retirement. If our holding were otherwise, there would be a loophole in the civil service act which would destroy its efficacy and take away from the members of paid police and fire departments the security extended to them by the statute itself. We say this because if one subject to the police civil service act can be retired “for reasons of economy” and a compulsory retirement is sought on that basis, which is not justified by the economic condition of the municipality, a person sought to be unjustly retired is not in a situation to make expensive and detailed investigation of the financial condition of the municipality in order to controvert the finding that the department was being reduced in numbers “for reasons of economy.” This Court has always been on guard against any inroads by judicial interpretation or otherwise, on the integrity and efficacy of the civil service statutes in'this State; and so once again we are applying the spirit, as well as the letter of the statutes, in the appraisement thereof, and hold that the Circuit Court of Wood County made no error in granting the writ of mandamus compelling the respondents to reinstate the petitioner to his former position as lieutenant in the police department of the city of Parkersburg.

The order of the Circuit Court of Wood County m issuing the writ of mandamus prayed for is affirmed.

Ruling affirmed.