DocketNumber: No. 10475
Citation Numbers: 138 W. Va. 1, 76 S.E.2d 594, 1952 W. Va. LEXIS 17
Judges: Haymond, Lovins, Riley
Filed Date: 9/30/1952
Status: Precedential
Modified Date: 11/16/2024
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.