City of Sweetwater v. Geron, A-9709
| Decision Date | 03 June 1964 |
| Docket Number | No. A-9709,A-9709 |
| Citation | 380 S.W.2d 550 |
| Parties | CITY OF SWEETWATER et al., Petitioners, v. J. T. GERON, Respondent. |
| Court | Texas Supreme Court |
Nunn, Griggs & Beall, Sweetwater, for petitioners.
Mays, Leonard, Moore & Dickson, Sweetwater, for respondent.
This case involves the validity of an ordinance of the City of Sweetwater establishing the maximum age limit at 65 for all employees of the City of Sweetwater. The City of Sweetwater is a home rule city in Nolan County, Texas. Since 1948 it has been subject to the provisions of the Firemen's and Policemen's Civil Service Act contained in Article 1269m, Vernon's Ann.Tex.Civ.St. (All references hereinafter to 'the Act' pertain to Article 1269m). The respondent, J. T. Geron, was a classified employee of the police department and performed the duties of a policeman. In 1961 the City Commission of the City of Sweetwater enacted an ordinance which provides that all city employees shall be retired at the age of 65. On the effective date of the ordinance, September 30, 19561, respondent Geron was over 70 years of age and was on that day removed from his employment solely because of that ordinance. Respondent brought suit in the district court of Nolan County seeking reinstatement and back pay. The City answered and both parties filed motions for summary judgment. The trial court granted judgment for petitioner City of Sweetwater and denied the relief sought by respondent. On appeal to the Court of Civil Appeals the action of the trial court was reversed and judgment entered for respondent. 368 S.W.2d 151.
The Court of Civil Appeals in effect held that the ordinance of the City of Sweetwater setting the maximum age limit for city employees was invalid in so far as it applies to policemen because it is in conflict with the Firemen's and Policemen's Civil Service Act, Article 1269m.
Section 5 of said article provides that the Civil Service Commission of the city adopting the Act shall make such rules and regulations for the proper conduct of its business as it shall find necessary and expedient and that:
'* * * Such rules and regulations shall prescribe what shall constitute cause for removal or suspension of Firemen or Policemen, but no rule for the removal or suspension of such employees shall be valid unless it involves one or more of the following grounds:
'Conviction of a felony or other crime involving moral turpitude; violations of the provisions of the charter of said city; acts of incompetency; neglect of duty; discourtesy by said employee to the public or to fellow employees while said employee is in line of duty; acts of said employees showing a lack of good moral character; drinking of intoxicants while on duty, or intoxication while off duty; or whose conduct was prejudicial to good order; refusal or neglect to pay just debts; absence without leave; shirking duty, or cowardice at fires; violation of any of the rules and regulations of the Fire Department or Police Department or of special orders, as applicable.'
Section 16 of said article sets out in detail the procedure under which a policeman may be suspended or permanently dismissed from his position for violation of rules. It also provides:
'* * * No employees shall be suspended or dismissed by the Commission except for violation of the civil service rules, and except upon a finding by the Commission of the truth of the specific charges against such employee.'
Section 16a states the purpose of the Act:
Admittedly the respondent policeman was not charged with the violation of any rule of the Civil Service Commission, he was not removed by the Civil Service Commission nor was he removed under the procedure set out in said Section 16. He was retired only by operation of the ordinance passed by the City Commission estblishing an age limit for all city employees. Consequently, if such ordinance cannot be applied to the policemen because of the Firemen's and Policemen's Civil Service Act, then the respondent should be reinstated as prayed for by him in his suit. On the other hand, if the ordinance is valid as applied to policemen, then the City should prevail. In our opinion the Act does not prohibit the City from legislating with reference to maximum age limit for city policemen.
We have quoted the above provisions of the Firemen's and Policemen's Civil Service Act because it is those provisions which respondent contends take away from the City its authority to enact an ordinance providing for a maximum age limit for firemen and policemen.
The matter of maximum age limits for classified employees is not specifically covered in the Act. The Civil Service Commission is given no authority in this field, nor is the City specifically prohibited from exercising its authority in this field. While the State has pre-empted the field for removal of firemen and policemen for disciplinary reasons, it has not by this Act preempted the field of maximum age limits for classified employees.
Respondent argues that because the Legislature states the purpose of the Act is 'to secure to the cites affected thereby efficient Police and Fire Departments composed of capable personnel * * * with permanent tenure * * *' we are required to construe Section 5 as containing exclusive grounds for removal. Otherwise the cities would not have, in the police departments, personnel with permanent tenure. As will be demonstrated later in this opinion, the Legislature did not use the term 'permanent tenure' in the absolute sense. Section 16a, which states the purpose of the Act, does not grant any additional power to the Civil Service Commission. While a statement by the Legislature of the purpose of an act is helpful in construing it, nevertheless the provisions designed to accomplish that purpose must fairly and reasonably do so. We must look elsewhere in this Act for authority of the Civil Service Commission to bring about permanent tenure of employees in the absolute sense. We do not find it elsewhere. While a rigid and fair enforcement of the rules and regulations promulgated by the Civil Service Commission within the limits prescribed by the Act may tend to create permanent tenure for classified employees, it does...
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