Chadwick v. Department of Highways

• Decision Date: 14 December 1959
• Docket Number: No. 44622,44622
• Citation: 116 So.2d 286,238 La. 661
• Parties: W. R. CHADWICK v. DEPARTMENT OF HIGHWAYS OF THE STATE of Louisiana.
• Court: Louisiana Supreme Court

Page 286

116 So.2d 286

238 La. 661

W. R. CHADWICK v. DEPARTMENT OF HIGHWAYS OF THE STATE of Louisiana.

No. 44622.

Supreme Court of Louisiana.

Dec. 14, 1959.

D. Ross Banister, Philip K. Jones, George W. Lester, Baton Rouge, for defendant-appellant.

Amos L. Ponder, Jr., New Orleans, Breazeale, Sachse p Wilson, Victor A. Sachse, Baton Rouge, for appellee.

HAWTHORNE, Justice.

This is an appeal by the Department of Highways of the State of Louisiana from a decision of the Civil Service Commission recognizing W. R. Chadwick 'as entitled to hold the position he occupied prior to January 15, 1959, as Laborer Utility in the employ of the Department of Highways, without interruption in said tenure since said date, and without prejudice to any of his rights thereunder'.

Act 54 of 1958, R.S. 42:691, is mandatory in that it requires the appointing authority to retire all persons employed by the state and its agencies who have reached the age of 65 years, who are eligible for retirement either under the Federal Social Security Law or under one of the state retirement systems. Mr. Chadwick, who was employed by the State Highway Department as a 'laborer utility', was more than 65 years of age¹ and eligible for retirement under the Social Security Law, 42 U.S.C.A. § 301 et seq. Pursuant to the act the Department of Highways on December 31, 1958, addressed the following letter to Mr. Chadwick:

'This is to advise that your services as Laborer Utility will be terminated at the completion of your regular work shift on January 15, 1959.

'Act No. 54 of 1958 provides that an employee who is insured under the Federal Social Security Law and who shall have attained the age of 65 years, shall be separated from the public service if eligible for retirement under the Social Security Act.

'Our records indicate that you are eligible for retirement under this act and it is for this reason that you are being separated.'

Mr. Chadwick received this letter not later than January 5, 1959. On January 16, one day after his retirement became effective under the letter quoted above, Mr. Chadwick at the request of the Department of Highways executed a form prepared by that department. This form is addressed to the Department of Highways and so far as pertinent reads: 'Gentlemen: Please accept my resignation effective at 5:00 (P.M.), January 15, 1959, for the reason or reasons checked below.' No reason was checked on the form, but under 'Remarks' is found: 'Retiring in accordance with Act 54, 1958.'

On February 16, 42 days after Mr. Chadwick received the letter informing him he was being retired, he filed an appeal with the Louisiana State Civil Service Commission for review of the action of the Department of Highways by which his services were terminated as of January 15, 1959, under the authority of Act 54 of 1958.

The Department of Highways moved the Commission to dismiss Mr. Chadwick's appeal on the grounds (1) that the appeal was not timely taken and (2) that Mr. Chadwick had resigned and hence had no right to appeal from his resignation. This motion to dismiss was overruled by the Commission, and on the merits the Commission recognized Mr. Chadwick to be entitled to continue in his position with the department.

On appeal to this court the Department of Highways contends that the Commission erred in denying its motion to dismiss Mr. Chadwick's appeal, and since we are of the view that the motion is well founded, it will not be necessary for us to discuss the case on the merits.

Article 14, Section 15(I), of the Constitution of this state vests in the State Civil Service Commission the authority and power to adopt and enforce rules, which shall have the effect of law, regulation employment, removal, etc., and particularly to adopt and enforce a rule 'fixing the procedure, the time within which appeals must be taken, and all other matters pertaining to appeals'. Under this constitutional authority the Commission adopted Rule 13.12, which reads as follows:

No appeal shall be effective unless notice thereof is filed with the Director at his office in the Department of Civil Service at Baton Rouge, within thirty (30) days following the action complained against, or within thirty (30) days following appellant's knowledge thereof, or Where written notice is given of an action to be thereafter effective, within the thirty (30) days following the date on which such notice is given.' (Italics ours.)

Since Mr. Chadwick was given written notice of an action to be thereafter effective, he had 30 days following the date on which notice was received or given in which to perfect his appeal to the Civil Service Commission. As stated above, the appeal was not perfected until February 16, 42 days after receipt of notice.

The Civil Service Commission recognized that Mr. Chadwick had not complied with Rule 13.12, but concluded that his retirement by the department was void ab initio because the Legislature could not 'constitutionally adopt a rule that creates a cause where no cause, under the well defined judicial meaning thereof, exists'. Having determined that the action of the department was void ab initio, it concluded that Rule 13.12 was without application under the authority of Young v. Charity Hospital of La. at New Orleans, 226 La. 708, 77 So.2d 13, 15.

Under our view on the merits of the motion to dismiss it is not necessary for us to discuss what authority if any the Civil Service Commission had to consider Act 54 of 1958 unconstitutional or for us to express any view as to its constitutionality.

As authority for overruling the motion to dismiss the Commission relied on certain language in the Young case, supra, which it construed to be a holding in that case--that is, that 'neither the Court, nor the Commission, nor the lapse of time could breathe a breath of life into that which is void ab initio'. This language and other statements in that case would seem to support the holding of the Commission, but that case is authority only for the legal proposition that the 30-day period for taking an appeal to the Commission does not begin to run where the appointing...