City of Natchez, Miss. v. Sullivan, 90-CA-1265

• Decision Date: 10 December 1992
• Docket Number: No. 90-CA-1265,90-CA-1265
• Citation: 612 So.2d 1087
• Parties: CITY OF NATCHEZ, MISSISSIPPI and Public Employees Retirement System of Mississippi v. Robert K. SULLIVAN.
• Court: Mississippi Supreme Court

Page 1087

612 So.2d 1087

CITY OF NATCHEZ, MISSISSIPPI and Public Employees Retirement

System of Mississippi v. Robert K. SULLIVAN.

No. 90-CA-1265.

Supreme Court of Mississippi.

Dec. 10, 1992.

Rehearing Denied Feb. 11, 1993.

John L. Maxey, II, Mary Marvel Fyke, Maxey Pigott Wann & Begley, Michael C. Moore, Atty. Gen., Leonard McClellan, Sp. Asst., Atty. Gen., Jackson, for appellants.

James P. Streetman, III, Pyle Dreher Mills & Woods, John T. Wakeland, Pyle Dreher Mills & Woods, Jackson, for appellee.

EN BANC.

ROY NOBLE LEE, Chief Justice, for the Court:

On August 11, 1989, Robert K. Sullivan requested a hearing from the Public Employees' Retirement System (PERS) on the question of whether Sullivan met the requirements for retirement benefits from the Natchez Police Department. PERS requested an Attorney General's opinion on the issue, which was answered by an unofficial opinion dated August 17, 1989. It stated that an employee in Sullivan's position would be entitled to retirement benefits under the applicable statute. On August 30, 1989, Robert S. Reeves of PERS wrote the Attorney General and requested a formal opinion on the question. Reeves then wrote Sullivan's attorney on September 6, 1989, stating that he was awaiting the Attorney General's opinion and that he would abide by that opinion in making the decision concerning Sullivan's retirement benefits.

After no further action on his case was taken, on March 13, 1990, Sullivan filed his complaint in the Circuit Court of the First

Judicial District of Hinds County. The complaint sought a declaratory judgment stating that Sullivan would be entitled to retirement benefits under Miss.Code Ann. Sec. 21-29-139 (1974) upon his retirement from the Natchez Police Department. The answers filed by the Public Employees' Retirement System (PERS) and the City of Natchez on April 16, and April 19, 1990, respectively, denied that Sullivan was entitled to relief under the statute and asserted that Sullivan's complaint should be dismissed for failure to exhaust his administrative remedies. The case was submitted for decision on the pleadings and arguments of the parties and the lower court held that under Miss.Code Ann. Sec. 21-29-139, Sullivan was entitled to retirement benefits. The City of Natchez has appealed to this Court.

FACTS

Robert K. Sullivan joined the Natchez Police Department on December 16, 1971, after a period of four years service in the United States Army. He served with the Natchez Police Department continually until the time of the lower court's opinion on November 8, 1990, attaining the rank of Lieutenant.

Miss.Code Ann. Secs. 21-29-101 through 21-29-151 (1972) provide a system of disability and retirement benefits for firemen and police officers in cities with populations of over 10,000 persons, called the "disability and relief fund for firemen and policemen." The system is funded by municipal tax levies, insurance taxes, gifts and deductions from the firemen and policemen salaries. Miss.Code Ann. Sec. 21-29-117 (1972). "Members" of the fund become entitled to receive their retirement benefits after serving in fire and/or police service for twenty years, the final ten of which must have been continuous with the city wherein the application for benefits is made. Miss.Code Ann. Sec. 21-29-139 (Supp.1974).

The source of this dispute is the final paragraph of that statute, which was added in 1974 as a local law pertaining only to the City of Natchez.

Provided, however, in any city having a population of nineteen thousand (19,000) but less than twenty thousand (20,000), according to the 1970 census, the periods of time not exceeding four (4) years within which a member of the fire or police departments served on active duty in the Armed Forces of the United States, shall not be excluded in computing the twenty (20) year period and the ten (10) year period mentioned in this section.

Id.

The City of Natchez contends that of 25 city employees which it has covered under this plan, seventeen would be eligible for pre-employment military credit if the lower court's interpretation of the statute is upheld. The city contends that the lower court's interpretation would create substantial hardships on the program and the city's taxpayers.

Each party presented an affidavit to the lower court in support of its position. The City of Natchez presented the affidavit of Walter Brown, a member of the House of Representatives when the amendment was passed and Natchez's City Attorney during at least part of this litigation. In his affidavit, Brown asserted that he authored the bill which became the amendment to Miss.Code Ann. Sec. 21-29-139 (1972). His intent in offering the amendment was to provide the same coverage for officers in Natchez that officers in other cities had under a 1973 amendment to Miss.Code Ann. Sec. 21-29-245 (1972), i.e., to allow a member of the fund to "not have excluded " (his emphasis) time served in the military. The legislature's intent was not, according to Brown, to allow pre-employment credit for military service, but only to allow credit served when an officer was taken away from his duty (i.e., drafted or enlisted).

Sullivan presented the affidavit of Troy Watkins of Natchez, who had served in the Senate during the 1974 session. He remembered that Brown introduced the amendment, but disagreed with Brown's statement of the purpose. He stated that the "reason for the amendment was that we had many service men in Natchez who had active duty in the Armed Forces during The portion of the title of the 1974 Act pertaining to the amendment of Sec. 21-29-139 (1972) provides: "to amend Section 21-29-139, Mississippi Code of 1972, to allow certain municipalities to allow service time in the armed services in computing the ten and twenty year period." 1974 Miss. Laws, Chapter 475.

the Vietnam era. These men did not have the opportunity to go to work before they were inducted or enlisted in the Armed Forces. All of these men served honorably and we felt that it was not fair to limit their ability to count service time towards retirement because of the wording of an older statute."

ISSUES

I. DID THE LOWER COURT ERR WHEN IT CONSTRUED A STATUTE TO BE AMBIGUOUS WHICH WAS BY ITS PLAIN MEANING CLEAR AND UNAMBIGUOUS?

II. IF THE LOWER COURT WAS CORRECT IN ITS DETERMINATION THAT THE MISSISSIPPI STATUTE Sec. 21-29-139 WAS AMBIGUOUS, WAS ITS CONSTRUCTION OF THAT STATUTE ERRONEOUS?

In considering a statute passed by the legislature, (Appendix A) the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction. Pinkton v. State, 481 So.2d 306 (Miss.1985); MISS CAL 204, LTD. v. Upchurch, 465 So.2d 326 (Miss.1985); Mississippi Power Company v. Jones, 369 So.2d 1381 (Miss.1979). Whether the statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent. Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986); Clark v. State ex. rel Mississippi State Med. Ass'n., 381 So.2d 1046 (Miss.1980).

The last paragraph of the statute which was amended by representatives from Adams County, where Natchez is located, provides only that a member have "served on active duty." The time of military service in relation to employment as a "member" is not set forth. No qualifying or limiting language in the paragraph attach to the word "member".

Natchez contends that the words "may have been absent" in other parts of the statute should also be read into the proviso pertaining only to Natchez and cites cases to the effect that statutes must be read as a whole and not in isolated parts in order to discern the legislative intent. McCaffrey's Food Mkt., Inc. v. Mississippi Milk Com'm, 227 So.2d 459, 463 (Miss.1969); State v. Board of Supervisors of Warren County, 233 Miss. 240, 102 So.2d 198, 210 (1958).

However, the omission of language from a similar provision on a similar subject indicates that the legislature had a different intent in enacting the provisions, which it manifested by the omission of the language. Hazardous Waste Treatment Council v. United States E.P.A., 861 F.2d 270, 276 (D.C.Cir.1988); Pennsylvania v. Bigelow, 484 Pa. 476, 399 A.2d 392, 395 (1979); Clallam Co. v. Bd. of Clallam Cty. Com'rs., 92 Wash.2d 844, 601 P.2d 943, 946 (1979). Further, "the particular statutes dealing with a special and particular subject will control, as to the terms of the special subject, over the general statutes dealing with like subjects in a general way." McCaffrey's, 227 So.2d at 462. See also Rath v. Rath Packing Co., 257 Iowa 1277, 136 N.W.2d 410 (1965). "Where there are two conflicting provisions in the same statute, the last expression of the Legislature must prevail over the former." Warner v. Board of Trustees of Jackson Mun. Sep. School Dist., 359 So.2d 345, 347 (Miss.1978) (quoting Coker v. Wilkinson, 142 Miss. 1, 106 So. 886, 887 (1926)).

We have been cited to only one case from another jurisdiction, which has interpreted a similar statute concerning a similar question. Its statute limited the credit for military service to service after the employment relationship had already begun. Regan v. Firemen's Relief & Pension Fund, 417 Pa. 573, 208 A.2d 844 (1965). However We are of the opinion that the statute involved in the case at bar is unambiguous and that its plain meaning allows credit for all time served in the military up to four years, regardless of whether served before or after the employment began. Although the lower court found the statute ambiguous and, therefore, heard evidence, he correctly decided that, under the statute and the facts, Robert K. Sullivan was entitled to credit for four years he served in the military of the United States prior to becoming an officer of the City of Natchez.

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