Wampler v. Department of State Police

WARNER, J.

The appellant-petitioner was a private in the state police. In October, 1958, he was removed from his post by the action of a trial board of the Department of State Police constituted under the provisions of OES 181.290 to 181.340. Subsequently, he filed a petition for judicial review in the Clackamas County-Circuit Court. The defendants filed a motion to quash upon the grounds that the court lacked jurisdiction. The petitioner appeals from the order dismissing his petition for a review.

The issue is framed by two statutory provisions. The first is extracted from OES ch 181, a general act governing the organization and procedures of the Oregon State Police Department. This chapter contains a definite procedure for the removal of officers and privates. It subjects the decisions of the trial board to review by the circuit court of the county in which the hearing was held. In this case that would be Marion County.

“The decisions of the trial board shall be subject to review by the circuit court of the county in which the hearing was held. The procedure for review shall be as provided in OES 34.010 to 34.100.” OES 181.350 (Oregon Laws 1941, ch 274, §3).

The second provision is extracted from the Oregon Administrative Procedure Act (Oregon Laws 1957, ch 717, pp 1292-99). The review procedure established by this act would, if applicable, permit the petition for review to be brought in the circuit court for the county in which the petitioner resides or has his principal business office, as well as in Marion County. It provides:

“(1) Except as otherwise provided specifically by statute, any party to an agency proceeding aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof under OES 183.310 to 183.510. Judicial review of decisions in contested cases by parties shall be solely as provided by OES 183.310 to 183.510.

“(2) Jurisdiction for judicial review is conferred upon the Circuit Court for Marion County and upon the circuit court for the county in which the petitioner resides or has his principal business office. * * *” ORS 183.480 (Oregon Laws 1957, ch 717, §12).

If the provisions of ORS 181.350 are applicable the petitioner has brought his suit for review in the wrong county. If the provisions of ORS 183.480 are applicable, the court below erroneously dismissed this petition since the petitioner resides in Clackamas County. The petitioner, of course, relies upon ORS 183.480 in support of his position. He argues that because the Administrative Procedure Act was enacted after ORS 181.350, there was an implied repeal of the earlier and more restrictive review provision. We find it unnecessary to consider this argument. Moreover, repeals by implication are not favored by the law. See, also, State v. Sturgess, 10 Or 58, 62.

The petitioner places considerable reliance upon the general language of the definitions of “agency” and of “contested case” which are found at the beginning of the Administrative Procedure Act. ORS 183.310. Whatever merit there may be in this contention, we find it unnecessary to examine whether or not the state police fall within the ambit of the Act. In so far as action of the trial board may be brought within the purview of the Act by these definitions, the ease is removed from the review procedure by the Act by a specific exclusion.

The problem can be easily resolved if we examine the first sentence of ORS 183.480 (1). This sentence is prefaced by the following exclusionary phrase: “Except as otherwise provided specifically by statute * * The procedure for the review of a decision of the police trial board is otherwise specifically provided by a statute; that is, by ORS 181.350, supra. If this exception made by ORS 183.480, supra, is to be given any effect, it demands that we must look to the statutes to determine if there is any specific provision for review and if such a provision is found we must then exempt that method of review from the operation of ORS 183.480.

We are not unmindful of the language in the last sentence of ORS 183.480 (1). It reads: “Judicial review of decisions in contested cases by parties shall be solely as provided by ORS 183.310 to 183.510.” Admittedly, this section could have been more artfully drawn. On the surface this last sentence appears to contradict the sentence which precedes it. However, inconsistencies are not favored in the law and our statutes require us to adopt an interpretation which gives meaning to every provision of the statute if such is possible. ORS 174.010. State Highway Commission v. Rawson, 210 Or 593, 611, 312 P2d 849 (1957); Anthony v. Veatch, 189 Or 462, 502, 220 P2d 493, 221 P2d 575 (1950); City of Portland v. Duntley, 185 Or 365, 380, 203 P2d 640 (1949).

Applying these rules we find there is a construction of ORS 183.480 (1) which gives both sentences a logical and rational meaning. Prior to the enactment of the Administrative Procedure Act there existed a variety of state agencies and of hearing procedures. It is likely that the legislature desired to provide for two possible situations: agencies such as the state police which had a distinct method of review and agencies which might operate under provisions for hearings but lack any definite provisions for review. The exception contained in the first sentence preserved the existing review procedures. The statement in the last sentence operated upon what remained and limited review procedures in other cases to that expressed in the Administrative Procedure Act.

In the light of this analysis we must conclude that the petitioner employed the wrong review procedure and brought his petition in the wrong forum. The court below was without jurisdiction to hear the petition. Accordingly, the judgment dismissing the petition is affirmed. Costs to neither party.