State ex rel. Marrow v. City of Lincoln

162 N.W. 138, 101 Neb. 57, 1917 Neb. LEXIS 57

• Court: Nebraska Supreme Court
• Decided: March 16, 1917
• Docket: No. 19901
• Status: Published

Opinions

Dean, J.

In April, 1912, the city of Lincoln adopted and it is now governed by the commission form of government in pursuance of the provisions of the Banning laAV (Laws 1911, ch. 24) being sections 5288-5311, Rev. St. 1913. This is an application for a writ of mandamus brought in the district court for Lancaster county by William P. Marrow, relator and appellant, against the city of Lincoln, defendant and appellee, to compel the city to reinstate him in the fire department of the city as assistant fire chief, from which position he was peremptorily discharged by the mayor and city council. The writ Avas denied, and relator has brought the case here, for review.

Relator’s employment in the city’s fire department commenced on July 2, 1911, at a monthly salary of $75, and at subsequent periods he was promoted to the positions of lieutenant and captain and assistant fire chief, in the latter position his monthly salary being $100. It was while in this position that he was discharged by order of the commission, a body consisting of five members, in pursuance of a resolution passed' on December 31, 1915, by four members of the city council. The order of discharge briefly recites that the services of relator, as a “member of the fire department, be and the same are hereby dispensed with.” The resolution by its terms became effective immediately on its passage. No charges were filed by the council nor by any person against relator, and it follows that he had no hearing before the council. The testimony introduced by relator in the district court disclosed that he was a capable and efficient officer in the several capacities in which he had served in the city’s fire department. The city did not offer any testimony.

Relator argues that in view of the premises the city council was without lawful authority to dismiss him. Defendant contends that it was justified in discharging relator peremptorily and that in the premises its acts are within the law. To determine the controversy between the parties it becomes necessary to construe so much of the Banning law and the firemen’s pension act as apply to the facts in the case before us. The title to tbe Banning act and section 13 thereof follow:

“ An act for the government of all cities having, according to the last preceding state or national census, five thousand or more population, and to enable such cities to adopt the provisions of this act called the ‘commission plan of city government.’ ”

Section 13 (Rev. St. 1913; sec. 5300) : “The council shall at its first meeting, or just as soon as possible thereafter, elect as many of the city officers provided for by the then existing laws or ordinances governing any such city as may, in the judgment of the council, be essential and necessary to the economical but efficient and proper conducting of the government of the city, and shall at the same time fix the salaries of the officers so elected either by providing that such salaries shall remain the same as fixed by the then existing laws or ordinances for such officers or may then raise or lower the existing salaries of any such officers, and the council may modify the powers or duties of any such officers, as provided by then existing laws or ordinances, or may completely define and fix such powers or duties anew. Any such officers or any assistant or employee elected or appointed by the council may be removed by the council at any time: Provided, however, in cities of the metropolitan class no member or officer of the police department, or department of police, sanitation and public safety or of the fire department or department of fire protection and water supply, shall be discharged for political reasons, nor shall a person be employed or taken into either of such departments for political reasons. Before any such officer or employee can be discharged charges must be filed against him before the council and a hearing had thereon, and an opportunity given such officer or employee to defend against such charges, but this provision shall not be construed to prevent peremptory suspension of such member by the council in case of misconduct or neglect of duty or disobedience of orders. Whenever any such suspension is made, charges shall he at once filed by the council with the officer having charge of the records of the council and a trial had thereon at a second meeting of the council after such charges are filed. For the purpose of hearing such charges the council shall have power to enforce attendance of witnesses, the production of books and papers, and to administer oaths to witnesses in the same manner and with like effect and under the same penalty, as in the case of magistrates exercising civil and criminal jurisdiction under the statutes of the state of Nebraska.” The modern writers and authorities generally hold that, in case of doubt as to the meaning of a statute, resort may be had to the title of the act as an aid to discover the legislative intent, but of course by no means to enlarge the scope of the statute so as to include a subject not fairly expressed in the body of the act. And this is particularly the case in a state where the Constitution requires the subject of the act to' be expressed in the title. Black, Interpretation of Laws (2d ed.) sec. 83; 2 Sutherland (Lewis’) Statutory Construction (2d ed.) sec. 339. In the present case it will be noted that the title refers to “all cities having * * * five thousand or more population.”

Defendant contends both in the oral argument and in its brief that cities of the class of Lincoln have an unrestricted right to remove at any time any employee without the formality of preferring or filing charges and without such employee being given an opportunity to he heard in his defense. In its brief it prints in full section 5300 above referred to, and in italics these words, “Any such officers or any assistant or employee elected or appointed by the council may be removed by the council at any time,” and argues that “the power of removal is by that section (5300) given to the city of Lincoln unrestricted, to he exercised in their discretion and at their pleasure, and any officer or employee so appointed holds his office in their discretion and at their pleasure.”

To consistently maintain its argument the city must ' also contend that the words “such officer or employee” in that part of the section following the word “provided” relate only to the officers named in the proviso. If “in cities of the metropolitan class no member or officer of the * * * fire department * * * shall be discharged for political reasons,” why the necessity of having such “member or officer” of a city of the metropolitan class safeguarded against a discharge “for political reasons” when he cannot at all be discharged for those reasons? We hold that the proviso clause of the section under consideration begins with the words, “Provided, however,” and ends with the words, “departments for political reasons.” So read, the proviso is complete in itself, and construed in the light of the other parts of the act and other statutes it was so intended by the legislature. Any other construction of that statute is too refined for practical use. We cannot give our assent to the defendant’s argument, nor to the judgment pronounced by the learned trial court.

Mr. Justice Story in Minis v. United States, 15 Pet. (U. S.) *423, speaking for the supreme court of the United States, says: “The office of the proviso, generally, is either to except something from the enacting clause, or to qualify or restrain' its generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended by the legislature to be brought within its purview.”

A rule of statutory construction is admirably stated in the early case of Hagenbuck v. Reed, 3 Neb. 17, cited in syllabus 1 herein: “In the construction of a statute, * * * no sentence, clause or word should be rejected as meaningless or superfluous, if it can be avoided; but the subject of the enactment and the language employed, in its plain, ordinary and popular sense, should be taken into account, in order to determine the legislative will.”

Applying the foregoing rule to the present case, we find the proviso is so plain that it is not susceptible of strained construction. It provides on the point involved that “no member or officer of” the several departments of a metropolitan city that are embraced within its terms “shall be discharged, for political reasons.” The proviso does not nse the word “employee.” That word is first used in section 5300, immediately preceding the proviso in this connection: “Any such officers or any assistant or employee elected or appointed by the council may be removed by the council at any time.” The next use of the word “employee” is found in the language immediately following the proviso, where it is used twice: “Before any such officer or employee can be discharged charges must be filed against him before the council and a hearing had thereon, and an opportunity given such officer or employee to defend against such charges.” Clearly the designation “officer” and “employee,” as used in the language following the' proviso, relates back to the subject embraced in the language that precedes the proviso. In view of the universal rule that the proviso is to be strictly construed, it would certainly be a strained construction to hold that all of section 5300 that follows the word “provided” is a part of the proviso, as the city seems to contend. To hold that all. the remainder of the chapter is a part of the proviso would be a construction only a little less liberal.

. That it is the duty of the court to discover, if possible, the legislative intent from the language of the act is elementary. It is not the court’s duty, nor is it within its province, to read a meaning into a statute that is not warranted by the legislative language. In the legislative domain, and within constitutional bounds which it is bound to follow, the legislature is supreme.

In the construction of a statute, courts take judicial notice of events generally known within their jurisdiction. In the present case the court may properly take judicial notice of the comparative size of the cities within its jurisdiction, and the reasons urged for and against the enactment of laws relating to cities generally. With this in mind, we can discover no reason why the legislature should have intended to grant to a member of a fire department in a city of 100,000 inhabitants and upAvards, a right to be faced by his accusers and to be heard in his own defense, and in the same act deny the right to a member of the fire department in a city of approximately 60,000 inhabitants. In the construction of the statute before ns, the court will not impute to the legislature an intent to be unreasonable, nor to commit itself to anything that is so manifestly unAmerican. It is always presumed the legislature intends to do the reasonable thing.

In the interpretation of a legislative enactment, it is the duty of the court to apply to the act generally accepted rules of statutory construction, to the end that effect may be given to the will of the legislature. The law-making body too is bound by such rules. But, in any event, if a law is objectionable application should be made to the legislature for its repeal or modification. The right to be heard, the right of any citizen in any walk of life to have his day in court, should not be denied him by placing a strained and technical construction upon a statute, and if there is any doubt about the meaning of the legislative language in this respect it should be resolved in favor of a hearing, rather than against a hearing. Such interpretation is more in harmony with the genius of our institutions.

In addition to the foregoing defense, the relator argues at some length that, by virtue of his employment in the fire department, he thereby had a vested right in the fireman’s pension fund in pursuance of sections 2516-2519, Rev. St. 1913, which, in brief, provide that, after a service of 21 years, sueh employees shall be entitled to the pension named in the act. It is conceivable that an arbitrary discharge of a fireman might be brought about without a hearing, for the sole purpose of enabling the city by indirect means to evade the payment of a pension. But, in view of our holding that the relator is entitled to a hearing in pursuance of section 5300, it does not appear to be necessary to discuss the pension feature at greater length.

Both of the parties too gave considerable attention in their respective briefs to questions of procedure. But on the final hearing technical rules relating to practice were for the most part abandoned, for which both parties are to be commended, thus avoiding the necessity on the part of the court of discussing anything save the merits.

The judgment of the district court is reversed, and the cause remanded, with instructions to enter a judgment in accordance with the views expressed in this opinion.

Reversed.

Cornish, J., not sitting. .