Bokern v. Scearce
| Decision Date | 05 October 1943 |
| Parties | Robert J. Bokern et al., Appellants, v. R. Elliott Scearce, Director of Personnel of the City of St. Louis et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis; Hon. Robert L. Aronson, Judge.
Affirmed.
Fred Armstrong and Aubrey B. Hamilton for appellants.
(1) "Being a statute for curing the evils which had long been felt and acknowledged . . . it should meet with a liberal construction in order to thoroughly effectuate its manifest purpose." Berlin v. Berlin, 52 Mo 151. When the purpose of a remedial statute is manifest the court derives its purpose from the general knowledge of the court and from the face of the act. (2) The construction of a statute by those charged with its execution, especially where it has long prevailed, is entitled to great weight and should not be disregarded or overthrown except for cogent reasons and unless it is clear that such construction is erroneous. In re Bernays' Estate, 344 Mo. 135, 126 S.W.2d 209, 122 A. L. R. 169; Automobile Gasoline Co. v. City of St. Louis, 326 Mo. 435, 32 S.W.2d 281; Missouri Digest Statutes, sec. 219. (3) Great weight and deference will be given by the courts to legislative interpretation of legislative acts, no matter in what way the legislative interpretation is evidenced. Sate ex rel. v. Igoe, 340 Mo. 1166, 107 S.W.2d 929; State ex rel. v Smith, 339 Mo. 204, 96 S.W.2d 348; Missouri Digest, Statutes, sec. 220. This rule extends to legislative interpretation, especially contemporary interpretation, of a constitutional provision. Though not conclusive, such interpretation is entitled to great weight and should not be departed from unless manifestly erroneous. State ex rel. v. Riedel, 329 Mo. 616, 46 S.W.2d 131; Missouri Digest, Constitutional Law, secs. 19 and 20. (4) It is manifest that it was not the purpose of new Article XVIII to deprive St. Louis of its existing merit system in the interval between the adoption of new Article XVIII and the start of functioning under it. (5) Many Missouri cases uphold the validity of the acts of a de facto officer. Missouri Digest, Officers, sections 39 ff., 92, 95, 104, 117. (6) If an employee in the classified service works beyond the period prescribed for temporary employees, and the record of the Civil Service Commission showing his certification is not qualified as to his status, sufficient proof exists to show he is a permanent employee. State ex rel. Leader v. Kansas City (Mo. App.), 258 S.W. 763. (7) Where a charter provides for regular and temporary appointments to classified service, only an emergency justifies a temporary appointment; appointments which are not in fact made in an emergency are regular appointments, even though civil service commission records designate them as temporary. Where employees work beyond the period for temporary appointments, they become regular or permanent employees, and successive reappointments as "temporary" employees are of no effect. McGillicuddy v. Civil Service Commission (Dist. Ct. App., 1st Dist. Div. 2. Cal.), 24 P.2d 942; Doerr v. Civil Service Commission (D. C. App., 1st Dist., Div. 1, Cal.), 68 P.2d 731. (8) The power of a Civil Service Commission under a new charter to regulate the status of employees in the classified service has no effect as to civil service rights acquired under the old charter where new charter protects such rights. Doerr v. Civil Service Commission (D. C. App., 1st Dist., Div. 1, Cal.), 68 P.2d 731. (9) Where a city by vote accepts civil service law, employees of the city acquire civil service status upon the date of acceptance and a probationary period of service required by the new law begins to run from that date. Crimmins v. Highway Commission of City of Brockton (Mass.), 23 N.E.2d 126. (10) Temporary or provisional appointments are made without competitive examination for emergency purposes only, and never ripen into permanent appointments; all appointments made after competition examination are permanent, though they may be subject to a fixed probationary period to allow an opportunity to observe actual work on the job. McCartney v. Johnston (Pa.), 191 A. 121; People ex rel. Orr v. Scannell (N. Y. Supp.), 66 N.Y.S. 182; Smith v. Stapleton (Col.), 100 P.2d 162; Ackerman v. Kern (N.Y.App.Div.), 11 N.Y.S. (2d) 374. (11) Appointments without examination for period longer than that permitted by civil service law for temporary appointments are unlawful. State ex rel. Raines v. City of Seattle, 134 Wash. 360, 235 P. 968 (). (12) An employee who serves more than the probationary period in classified service, having been duly certified from an eligible list, becomes a permanent employee and cannot be discharged except for cause and with notice and hearing. Nesbit v. Frincke (Colo.), 179 P. 867; People ex rel. Kaster v. Kearny (N. Y. Supp.), 74 N.Y.S. 391; State ex rel. Hamilton v. Kansas City (Mo.), 259 S.W. 1045. (13) A person appointed to classified service after competitive examination may be discharged without notice or hearing during probationary period provided by civil service law, appointment not being permanent in sense of final acquisition of status until probationary period expires. McDonal v. Gustance (Mass.), 136 N.E. 605; Crimmins v. Highway Commission of City of Brockton (Mass.), 23 N.E.2d 126. (14) Persons who were on the eligible lists at the time Amended Article XVIII of the Charter of St. Louis was passed and who were thereafter appointed to office from the civil service eligible lists, upon being so employed, took the status of the civil service employees described in Section 12 of Amended Article XVIII, and may be removed from office only by the same procedure which is prescribed for employees at the time the Amended Article XVIII was passed. Roark v. State ex rel. McDaniel (Fla.), 165 So. 901. (15) The four reported cases construing Amended Article XVIII are: State ex rel. Pedrolie v. Kirby (Mo.), 163 S.W.2d 964; State ex rel. Pedrolie v. Hertenstein (Mo.), 163 S.W.2d 963; State ex inf. McKittrick, Atty. Gen. ex rel. Ham v. Kirby (Mo.), 163 S.W.2d 990; Kirby v. Nolte (Mo.), 164 S.W.2d 1. They are not in point, but generally helpful.
Charles P. Williams for respondents R. Elliott Scearce, Director of Personnel, Daniel N. Kirby, Luther Ely Smith and Paul J. Kaveney, Members of the Civil Service Commission.
(1) Save for the temporary exception created by Section 30 of the Amendment, permitting salary payments under the provisions of the old system, the Charter Amendment took effect on the day of its adoption by the people of the city of St. Louis. State ex rel. Pedrolie v. Kirby et al., 163 S.W.2d 964. (2) Section 12 of the Amendment became effective on the date of adoption. That section protected from further examination only those who were legally occupying, by regular appointment, a position in the Classified Service on the date the amendment was adopted. (3) Every new employee appointed during the interim period in the place of an employee who was discharged or induced to resign, must be deemed to be in the nature of a temporary employee. (4) Section 2, Section 3 (clause c) and Section 9 () became effective upon the date the Amendment was adopted. (5) The question is one of interpretation. We know of no really apposite precedent.
In this suit plaintiffs, all of whom are members of the St. Louis Fire Department, sought an injunction against defendants, all of whom are officials of the City of St. Louis, to restrain defendants from interfering with plaintiffs' alleged status as permanent employees in the classified service of the city of St. Louis; from refusing to permit plaintiffs to discharge the duties of such position; and from refusing to compensate plaintiffs for such services. The trial court, after hearing, denied the relief prayed for, and entered a judgment dismissing the bill. From that judgment, plaintiffs brought this appeal.
Whether appellants are entitled to the relief sought depends upon a construction of certain sections of Article XVIII of the City Charter, which sections were adopted as an amendment to the City Charter by the people of St. Louis at an election held September 16, 1941. Article XVIII, as originally enacted in 1914, contained provisions for the establishment of a so-called merit system, among which provisions was one for the appointment by the Mayor of an Efficiency Board of three members to administer the system; another dividing the service of the city into an unclassified and classified service; and another authorizing the Efficiency Board to prescribe rules for the classified services. These rules were to provide: (a) For the classification and standardization of all positions in said service; (b) for competitive examinations to test the relative fitness of applicants for position in the classified service and reasonable regulations concerning promotion; (c) for rejection of candidates who failed to comply with reasonable requirements as to age, residence, sex, physical condition, and moral character; (d) for certification to the appointing authority, as occasion might require, from appropriate eligible lists, the names of the three persons standing highest on said list; (e) for temporary employment for not exceeding sixty days, without examination, in the absence of an eligible list; (f) for transfer from a position to a similar position in the same grade, and for reinstatement on the eligible list of persons separated from the service or reduced in rank through no fault or delinquency on their part; (g) for appointment of unskilled laborers; and (h) for...
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