Fox v. City of Columbia

491 S.W.2d 353, 1973 Tenn. LEXIS 419
CourtTennessee Supreme Court
DecidedFebruary 20, 1973
StatusPublished
Cited by1 cases

This text of 491 S.W.2d 353 (Fox v. City of Columbia) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox v. City of Columbia, 491 S.W.2d 353, 1973 Tenn. LEXIS 419 (Tenn. 1973).

Opinion

OPINION

HUMPHREYS, Justice.

The City of Columbia retired Emmett P. Fox, Chief of Police, under a retirement pension plan ordinance, adopted in 1961. Chief Fox, a Civil Service employee, contended that he could not be retired, because of the Civil Service provision in the city charter. In Chief Fox’s suit based on this contention, the trial court held for the city. Chief Fox has appealed, assigning this action as error.

Invoking the proposition that the city charter prevails over an ordinance, Barnes v. Ingram, 217 Tenn. 363, 397 S.W.2d 821, 825, Chief Fox relies on § 18 of the city charter, relating to the termination of employment of Civil Service employees, for the proposition that the sole authority to make provision for the termination of Civil Service employees under any circumstances is vested by the charter in the Civil Service Board. § 18 is as follows:

“Sec. 18. Civil Service employees may be dismissed, suspended, reduced in rank, or otherwise punished only by judgment of the Civil Service Board after trial and conviction by said Civil Service Board upon a written charge or charges, a copy of which shall be furnished the accused at least ten days prior to such trial. A copy of any amendment or amendments made to said charge or charges before or during the trial shall be furnished the accused at least five days prior to the time he shall be required to make defense thereto. Said charge or charges, or any amendments thereto, shall plainly and specifically set forth the offense or offenses charged, and shall be recorded by the Civil Service Board in a record kept for that purpose .”

The City, on its side, refers us to § 6 of its charter which provides:

“Section 6. Board of Commissioners, powers. The legislative and all other powers except as otherwise provided by this Charter are hereby delegated to and vested in the Board of Commissioners, and the Board of Commissioners may, by ordinance or resolution, not inconsistent with this Charter, prescribe the manner [354]*354in which any powers of the City shall he exercised, provide all means necessary or proper therefor, and to do all things needful within or without the City or State to protect the rights of the City.”

Under this authorization the city adopted its pension retirement ordinance No. 570 with these pertinent provisions:

“A. Section 1.07. Employer: Shall mean the City of Columbia, Tennessee, and any entity succeeding it which shall assume the obligations of this plan.
“B. Section 1.09. Normal Retirement Date: Shall mean the anniversary date nearest a participant’s sixty-fifth (65th) birthday. Normal retirement date for participants who are over age fifty-five at date of original entry into the plan, shall be ten years from the date of such entry.
“C. Section 1.11. Participant: Shall mean an employee who becomes covered under this plan as provided in Article II.
“D. Article V. Retirement.
Section 5.01. Participants expected to Retire at Normal Retirement Date: Each participant shall be expected to retire on his normal retirement date, and may continue on in employment after said date only at the request of the employer and with the consent of the participant.”

It was stipulated by the parties that the normal retirement date of Chief Fox under Ordinance No. 570 was July 1, 1971, and that he was retired on August 5, 1971.

So, the issue is, whether or not the City was authorized to adopt its retirement ordinance, in view of the provision in its charter with respect to Civil Service employees.

We have concluded, both upon general principles of statutory construction and interpretation, and upon an abundance of authority from other states, that there is no conflict between the Civil Service provisions of the charter and the retirement ordinance.

Section 18, on which Chief Fox relies, relates only to the disciplining of Civil Service employees. Its provision that Civil Service employees may be “dismissed, suspended, reduced in rank, or otherwise punished only by judgment of the Civil Service Board after trial and conviction by said Civil Service Board upon a written charge or charges,” leaves no doubt that the charter section was intended to relate exclusively to the subject of the manner in which Civil Service employees might be disciplined, and makes it clear that the section has nothing to do with the subject of the termination of employment because of age.

Not only is there nothing in Sec. 18 that indicates an intention to control by charter the subject of retirement by reason of age, the charter indicates the true, and a contrary, purpose of the Civil Service provisions, in Article 6.1

[355]*355Since the subject of retirement because of age is nowhere mentioned in the Civil Service provisions of the charter, but to the contrary the expressed purposes of the Civil Service provisions are to secure and protect employees from arbitrary and capricious political action, and to insure employment during good behaviour, Coop-ersmith v. City & County of Denver, 156 Colo. 469, 399 P.2d 943, it follows, upon general principles of statute construction and interpretation, that there is no basis for the application of the rule exemplified by Barnes v. Ingram, supra. So, the question remaining is whether or not under § 6 of the City Charter, Board of Commissioners, Powers, supra, the City of Columbia was authorized to enact an ordinance providing for mandatory retirement of civil service employees at age sixty-five.

While we have no cases in Tennessee that deal with this subject, there are many such cases from other jurisdictions, all of which uphold the right of a municipality to provide for the mandatory retirement of Civil Service employees who have attained an age which would affect the efficiency of the employee. Boyle v. City of Philadelphia, 338 Pa. 129, 12 A.2d 43; Humbeutel et al. v. City of New York et al., Sup., 125 N.Y.S.2d 198; Coopersmith v. City & County of Denver, 156 Colo. 469, 399 P.2d 943; Geary et al. v. Trustees of the Village of Mamaroneck, 53 Misc.2d 337, 278 N.Y. S.2d 506.

In Boyle v. City of Philadelphia, supra, municipal firemen, Civil Service employees under charter provisions providing for removal or discharge only for cause upon written charges and after a public hearing, were retired at age sixty-five under an ordinance adopted subsequent to the Civil Service legislation. In answering their contention that the ordinance was invalid that Court said:

“Of course, in the absence of express statutory prohibition, the power is inherent in a municipality to prescribe reasonable and non-discriminatory superannuation classifications, similar to those here set up, with respect to its fireman and policemen. Experience has demonstrated that generally one who has attained the age of sixty or sixty-five does not possess the physical vitality or energy of a younger man.”

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Bluebook (online)
491 S.W.2d 353, 1973 Tenn. LEXIS 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-city-of-columbia-tenn-1973.