138 W. Va. 1 | W. Va. | 1952
Lead Opinion
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
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
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*7 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;
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
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 commis
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
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.
Ruling affirmed.
Dissenting Opinion
dissenting:
As I disagree with the conclusion reached by the majority of the Court I dissent from its decision in this proceeding.
The single issue in this case is not whether the petitioner was lawfully retired on pension but whether the petitioner, a former police officer of the defendant, the City of Parkersburg, who, being more than fifty years of age and having served continuously for more than twenty years, had been retired by the city for reasons of economy, under the first paragraph of Section 13, Chapter 57, Acts of the Legislature, 1937, Regular Session, is entitled to and may require reinstatement to the position formerly held by him, under the second paragraph of Section 13, when the police department is increased to the same numerical strength which existed before its reduction for reasons of economy. The majority of the Court by creating and deciding a different issue and by reading Section 13, Chapter 57, Acts of the Legislature, 1937, Regular Session, and Section 20, Article 6, Chapter 8, Code, 1931, as amended and reenacted by Section 20, Article 6, Chapter 69, Acts of the Legislature, 1935, Regular Session, and Section 20, Article 6, Chapter 93, Acts of the Legislature, 1945, Regular Session, in pari materia, by changing the word “sufficient” to “insufficient ” in the second paragraph of Section 13, and by proceeding to interpret those statutory' provisions, reaches the wholly unwarranted conclusion that the petitioner, because he is not sixty five years of age or has not voluntarily applied in writing for retirement on pension, under Section 20, Article 6, Chapter 8, Code, 1931, as so amended, may, in a proceeding in mandamus, require the municipality and its civil service commission to reinstate him to his former position as a member of the police department of the municipality. In my judg
The action of the majority in substituting the word “insufficient” for the word “sufficient”, placed in the section by the Legislature, is not necessary in the decision of this case and, in my judgment, is wholly unwarranted. The second paragraph of the section deals with the suspension of policemen and does not apply to their retirement which is provided for by the first paragraph of the section. The petitioner was not suspended but was retired on pension under that paragraph, and in his petition he does not charge that he was suspended or challenge the validity of the action of the municipality in placing him on retirement. His sole complaint in this proceeding is that the defendants refuse to restore him to his former position as a member of the municipal police department. Though statutes which deal' with the same subject should be read together, it is entirely unnecessary to do so as to Section 13, Chapter 57, Acts of the Legislature, 1937, Regular Session, and Section 20, Article 6, Chapter 8, Code, 1931, as amended, to decide the real question involved in this proceeding. But even if the foregoing statutory provisions should be read and considered together the provisions of the first paragraph and the second paragraph of Section 13, being clear and free from ambiguity, are not subject to judicial interpretation. By interpreting the provisions of the second paragraph of the section which, as already pointed out, are not open to judicial interpretation, and by substituting the word “insufficient” for the word “sufficient” the majority amends and rewrites that part of the section. If the statute is to be so amended or rewritten that function should be performed by the Legislature and not by the courts. 17 M. J., Statutes, Section 33.
It is significant that nowhere in Section 13, Chapter 57, Acts of the Legislature, 1937, Regular Session, or in
As already pointed out, the provisions of the first paragraph of Section 13, quoted in the majority opinion, and which deal with a paid policeman eligible for retirement under the terms of a pension fund act who, for reasons of economy, has been retired on pension, are clear and free from.ambiguity, are not subject to judicial interpretation, and should not be interpreted but instead should be applied and enforced by the courts. When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts. Douglass v. Koontz, 137 W. Va. 345, 71 S. E. 2d 319; State v. Epperly, 135 W. Va. 877, 65 S. E. 2d 488; Hereford v. Meek, 132 W. Va. 373, 52 S. E. 2d 740; State ex rel. Department of Unemployment Compensation v. Continental Casualty Company, 130 W. Va. 147, 42 S. E. 2d 820; State ex rel. McLaughlin v. Morris, 128 W. Va. 456, 37 S. E. 2d 85; State v. Patachas, 96 W. Va. 203, 122 S. E. 545; Kelley and Moyers v. Bowman, 68 W. Va. 49, 69 S. E. 456. If a statute is free from ambiguity the duty of the court is not to construe but to apply the statute and, in so doing, the words of the statute should be given their ordinary acceptation
As the provision of the first paragraph of Section 13, Chapter 57, Acts of the Legislature, 1937, Regular Session, is clear and unambiguous, it is not subject to judicial interpretation, and it should not have been interpreted by the Court. But even if the provision were ambiguous or uncertain, and, in consequence, subject to judicial interpretation, the interpretation placed upon it by the majority in considering it together with the provisions of the second paragraph of the section and the provisions of Section 20, Article 6, Chapter 8, Code, 1931, as amended, is entirely unjustified. By holding that under the provisions of Section 13, Chapter - 57, Acts of the Legislature, 1937, Regular Session, and Section 20, Article 6, Chapter 8, Code, 1931, as amended, a 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 can not be compelled to retire, for economic reasons or other reasons, unless he is sixty five years of age, or physically or mentally unable to perform his
A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute. State v. Jackson, 120 W. Va. 521, 199 S. E. 876; Wilson V. Hix, 136 W. Va. 59, 65 S. E. 2d 717; State ex rel. Watson v. Rodgers, 129 W. Va. 174, 39 S. E. 2d 268; Long Flame Coal Company v. State Compensation Commissioner, 111 W. Va. 409, 163 S. E. 16; Vinson v. County Court of Wayne County, 94 W. Va. 591, 119 S. E. 808; State ex rel. Churchman v. Hall, 86 W. Va. 1, 102 S. E. 694; State ex rel. Herald v. Surber, 83 W. Va. 785, 99 S. E. 187; State v. Harden, 62 W. Va. 313, 58 S. E. 715, 60 S. E. 394; Building and Loan Association v. Sohn, 54 W. Va. 101, 46 S. E. 222. In 17 M. J., Statutes, Section 42, the text contains these statements: “In the interpretation of a statute, effect shall be given, if possible, to every section, clause, word or part of the .statute. Under the usual and elementary rules of construction, the language of a statute must be construed so as to give that language some meaning where it is possible to do so, without doing violence to the clear intent and purpose
Though statutes which deal with the same subject should be read and considered together, such statutes, when clear and free from ambiguity, are not open to judicial interpretation. In 50 Am. Jur., Statutes, Section 348, the text is in these words: “Moreover, as in the case of all other rules of statutory construction, the necessity of applying the rule as to the construction of statutes in pari materia exists only where the terms of the statute to be construed are ambiguous, or its significance doubtful. Statutes in pari materia may not be resorted to to control the clear language of the statute under consideration.” See also 59 C. J., Statutes, Paragraph 620 (2) (a), page 1050, and Paragraph 619, d, (1), page 1041. In State v. Epperly, 135 W. Va. 877, 65 S. E. 2d 488, this Court said in point 1 of the syllabus: “The rule that statutes which relate to the same subject should be read and construed together is a rule of statutory construction and does not apply to a statutory provision which is clear and unambiguous.” The action of the majority in construing instead of applying the plain provision of the first paragraph of Section 13, and in placing on it a strained, distorted and unreasonable con
The majority seeks to justify its action, in construing the first paragraph of the section in the manner indicated, on the ground that Section 20 of Chapter 57, Acts of the Legislature, 1937, Regular Session, declares that the act was intended to furnish a complete and exclusive system for appointment, promotion, reduction, removal and reinstatement of all officers, policemen or other employees of police departments whose members are paid in municipalities subject to the act, and that Section 1 of the act provides that no persons subject to it, except the chief of police, shall be appointed, reinstated, promoted, or discharged as a paid member of any municipal police department in any manner or by any means other than as prescribed by the act. If it be conceded, as it is, that the provisions of Sections 1 and 20 of the act mean what they say, those provisions do not justify or sustain the position of the majority, for the clear and simple reason that the petitioner was retired on pension for reasons of economy as expressly authorized and provided by the first paragraph of Section 13 of the act. In holding that the petitioner was not properly retired on pension because, not being sixty five years of age, he did not in writing voluntarily request that he be so retired, the majority puts him in a different position from that in which he has placed himself for, as already pointed out, he states in his petition for the writ, as amended, that he was retired on pension for reasons of economy. His complaint is, not that he was so retired, but that, having been so retired, he should be reinstated to membership in the police department when it was restored to the same numerical strength possessed by it before it was reduced by his retirement. The effort of the majority in this respect is greater than that of the
Notwithstanding the plain provisions of the first paragraph of Section 13, Chapter 57, Acts of the Legislature, 1937, Regular Session, which, if they mean anything, mean that a municipality, by its proper authorities, may retire, for reasons of economy, an eligible member of its police department, on pension without his consent, and despite the absence of any provision in that section or elsewhere which requires the consent of an eligible policeman to such retirement or permits the reinstatement of a policeman so retired, the majority, in denying the right of the municipality to retire such policeman for reasons of economy without his consent advances the argument that in any particular case compulsory retirement may not be justified by the economic condition of the municipality, and in such instance, the person so retired may be unable to make the necessary expensive investigation of the real financial situation to controvert a finding that the police department was reduced in number for reasons of economy and that in that way “a loophole in the civil service act” would be created "which would destroy its efficacy and take from the members of paid police and fire departments the security extended to them by the statute itself.” This argument is obviously unsound and utterly unpersuasive.' It means, in effect, that if a charge is made against a person involving a condition which he can not defend or controvert without difficulty or inconvenience, the charge, regardless of its justice, can not, as a matter of law, be made or prosecuted. This to me is a strange and heretofore
Instead of affecting the security provided for policemen and firemen by the civil service statute, the exercise of the right conferred upon the authorities of a municipality by the first paragraph of Section 13 to retire an eligible policeman on pension without his consent for reasons of economy merely prevents, as the Legislature clearly intended it to do, the intolerable situation in which a municipality is required to keep and retain in its police department members in excess of the number which, because of its financial condition at any particular time, it can reasonably afford to continue in its employment. By denying a municipality the right to exercise that authority without the consent of the policeman which it seeks to retire for reasons of economy, the majority places a limit on its exercise not imposed by the statute and obviously not intended by the Legislature, subordinates the economic interest of the municipality to the interest of its employee, and defeats the purpose for which the first paragraph of Section 13 was enacted. I am unwilling to sanction or approve the accomplishment of that result by any process of judicial interpretation of an unambiguous legislative enactment.
As the statutory provision construed by the majority, being clear and free from ambiguity, is not open to judicial interpretation, as the issue decided relating to the “eligibility” of the petitioner for retirement is not presented by the pleadings, and as the construction adopted by the majority is entirely unnecessary and wholly unjustified, defeats the purpose for which the first paragraph of Section 13, Chapter 57, Acts of the Legislature, 1937, Regular Session, was enacted and, in effect, eliminates that provision as written from the act, I would reverse the judgment of the Circuit Court, refuse the writ, and dismiss this proceeding at the cost of the petitioner.
I am authorized to state that Judge Lovins concurs in the views expressed in this dissent.
