Banks v. City of Greenwood, By and Through City Council
| Decision Date | 14 October 1981 |
| Docket Number | No. 52860,52860 |
| Citation | 404 So.2d 1038 |
| Parties | Herman G. BANKS v. CITY OF GREENWOOD, Acting By and Through the CITY COUNCIL and the Civil ServiceCommission. |
| Court | Mississippi Supreme Court |
Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
Brewer, Deaton, Evans & Bowman, Billy B. Bowman, Greenwood, for appellees.
Before PATTERSON, C. J., and SUGG and LEE, JJ.
Herman G. Banks appeals from an order of the Circuit Court of Leflore County which affirmed an order of the Civil Service Commission of the City of Greenwood, modifying Banks' dismissal. In lieu of dismissal, Banks was given: (1) a 90 day suspension without pay; (2) demotion in rank from Captain to Sergeant; (3) three years' probation with automatic dismissal from service for the violation of any of the rules and regulations of the City of Greenwood Fire Department, the personnel rules and regulations of the City of Greenwood, or the Civil Service rules and regulations of the City of Greenwood; and (4) required to submit a written letter of apology to Mayor Louis E. Fancher, Jr., Commissioner E. M. Ambrose, and Fire Chief Jimmy Lord.
From this decision, Banks appeals, assigning as error the court erred in affirming the Civil Service Commission's modification because as a matter of law the decision is legally invalid and is in excess of the disciplinary action permitted under MCA § 21-31-23 (1972).
The City of Greenwood and the Civil Service Commission cross-appeal, assigning as error the lower court erred in its failure to grant the motion to quash the writ of certiorari.
It is not necessary to detail the events culminating in Captain Herman Banks' dismissal from the Greenwood Fire Department since they are not dispositive of this appeal. The primary issue on Banks' appeal is the construction of the following language found in MCA § 21-31-23 (1972) as follows:
The commission upon such investigation may, in lieu of affirming the removal, suspension, demotion or discharge, modify the order of removal, suspension, demotion or discharge by directing a suspension, without pay, for a given period and subsequent restoration of duty, or by directing a demotion in classification, grade, or pay. The findings of the commission shall be certified, in writing to the appointing power, and shall be forthwith enforced by such officer. (Emphasis added).
Banks contends § 21-31-23 should be construed to mean the Civil Service Commission can modify the disciplinary action of an employee by suspension or demotion, but not both. We are of the opinion the word "or" in § 21-31-23 should be construed as disjunctive rather than conjunctive. Therefore, the Civil Service Commission would have the statutory power to modify a dismissal to a demotion or suspension, but not both.
We are of the opinion this is the proper construction for several reasons. First, a perusal of the forerunners of § 21-31-23 reveals the same language used; thus, prior legislative enactments of this statute do not indicate "or" should be construed as "and." Secondly, since there is no legislative intent which we can glean to the contrary, the word "or" must be accepted in its popular disjunctive form as meaning "an alternative between different or unlike things, states, or actions." Webster's Third New International Dictionary 1585 (1961). We stated in Mississippi Power Co. v. Jones, 369 So.2d 1381, 1388 (Miss.1979), the following rule of statutory construction:
Popular words in statutes must be accepted in their popular sense and the Court must attempt to glean from the statutes the legislative intent. Dennis v. Travelers Insurance Co., 234 So.2d 624 (Miss.1970); Mississippi State Tax Commission v. Hinton, 218 So.2d 740 (Miss.1969). Where the language used by the legislature in a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion to resort to rules of statutory interpretation. Forman v. Carter, 269 So.2d 865 (Miss.1972);...
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... ... These questions arise through the process legislatively committed Employee ... Banks v. City of Greenwood, 404 So.2d 1038 (Miss.1981) ... ...
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Dunn v. Mississippi State Dept. of Health, 96-CA-00917-SCT
...Health Department does not have the discretion to change more than one of these items of information. Ted cites Banks v. City of Greenwood, 404 So.2d 1038, 1039-40 (Miss.1981) for the rule of statutory interpretation that "or" may not be read as "and" unless there is a legislative indicatio......
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Beasley v. City of Gulfport
...MILLS and WALLER, JJ., concur. McRAE, J., concurs in result only. 1. The appellant relies on this Court's opinion in Banks v. City of Greenwood, 404 So.2d 1038 (Miss.1981), in support of his argument that the commission exceeded its authority when it both modified the city's disciplinary ac......