Dougherty v. City of Parkersburg, 10475

• Decision Date: 30 July 1953
• Docket Number: No. 10475,10475
• Court: West Virginia Supreme Court
• Parties: DOUGHERTY, v. CITY OF PARKERSBURG et al.

Page 594

76 S.E.2d 594

138 W.Va. 1

DOUGHERTY, v. CITY OF PARKERSBURG et al.

No. 10475.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 3, 1952.

Decided Sept. 30, 1952.

Dissenting Opinion July 30, 1953.

Syllabus by the Court

1. Where, in the interpretation of a statute, it is clear from the statute itself that a word or words, or a part or parts thereof, was inadvertently omitted, and that such ommission renders the statute unintelligible or leads to an absurd result, it is the province of this Court to interpret the statute so as to effectuate the intention of the Legislature.

2. 'Statutes relating to the same subject, whether passed at the same or different times, must be read and construed together.' Pt. 2 Syl., State v. Reed, 107 W.Va. 563 .

3. Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937, providing for a reduction in the number of paid members of a municipal police department 'for reasons of economy', and Code, 8-6-20, as amended and reenacted by Section 20, Article 6, Chapter 69, Acts of the Legislature, 1935, and Section 20, Article 6, Chapter 93, Acts of the Legislature, 1945, relating to policemen's and firemen's pension and relief funds, should be read in pari materia; and both statutes, being remedial in their nature, should be liberally construed to effectuate their underlying purposes.

4. An underlying purpose of the police civil service statute, Chapter 57, Acts of the Legislature, 1937, is to give security to members of paid police departments of municipalities having a population of five thousand or more against the vicissitudes of municipal elections.

5. It is the legislative intendment of the police civil service act, Chapter 57, Acts of the Legislature, 1937, to provide for a complete and all-inclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers (except the chief of police), policemen and other employees of paid police departments in all municipalities having a population of five thousand or more.

6. A paid member of a police department of a municipality cannot be compelled against his will to go on a retirement basis under Section 13, Chapter 57, Acts of the Legislature, Regular Session 1937 (Michie's West Virginia Code, Anno., 1949, 8-5A-13, the police civil service act), unless he has reached the age of sixty-five years, or because of physical or mental disability he is unable to perform his duties; but such member is eligible to be retired on a voluntary basis if (1) he has attained the age of fifty years; (2) has served continuously for more than twenty years; and (3) has made written application to the board of trustees of the policemen's pension fund for retirement from service in the department without medical examination or disability.

Robert B. McDougle and Joseph M. Handlan, Parkersburg, for plaintiffs in error.

Orville L. Hardman and Eugene T. Hague, Parkersburg, for defendant in error.

RILEY, President.

In this proceeding in mandamus, instituted in the Circuit Court of Wood County by Harry S. Dougherty against the City of Parkersburg, a municipal corporation, Golden Underwood, its mayor, and R. H. Boice, Robert S. Widmeyer, and William A. Smith, members of the Civil Service Commission of the City of Parkersburg, the respondents prosecute this writ of error to a final order of the circuit court, entered on December 11, 1951, commanding them to reinstate and restore the petitioner, Harry S. Dougherty, to his former position of lieutenant in the police department of the city of Parkersburg.

The petitioner filed his petition in the circuit court, praying that he be awarded a writ of mandamus, commanding the respondents to 'reinstate this petitioner to his former position of Lieutenant in the Police Department of the city of Parkersburg.' This petition alleges that the respondent mayor is authorized to make all appointments to the police department, except so far as his appointing power and confirmation may be restricted or governed by the provisions of Chapter 57, Acts of the Legislature, 1937, as amended (Michie's West Virginia Code, Anno., 1949, 8-5A); that the respondents, the civil service commissioners have been acting under the authority of said Chapter 57, Acts of the Legislature, 1937, as amended; that the petitioner is less than sixty-five years of age, and, therefore, is not required by Section 20, Article 6, Chapter 93, Acts of the Legislature, Regular Session, 1945, to be retired from employment as a member of the police department of the city of Parkersburg (Michie's West Virginia Code, Anno., 1949, 8-6-20); that on August 2, 1949, the petitioner then having attained the rank of lieutenant, was notified by the respondent mayor, Golden Underwood, that 'for reasons of economy', petitioner was to be retired from the police department which retirement was to be effective on August 16, 1949; and that said reduction was in accordance with 'Michie's West Virginia Code of 1943. Serial Section 525(13)' (Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937); that Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937, provides 'by necessary implication any policeman retired on pension for reasons of economy shall be reinstated to the Police Department from which he has been retired before any new appointments are made to the said Police Department, if and when it becomes necessary to again increase the number of policemen to the strength existing prior to the reduction in number for economy reasons'; that on July 13, 1950, petitioner made application to the respondent mayor for reinstatement to the police department in accordance with 'Article 5A, Chapter 8 of the Code of West Virginia' (Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937); that it was the duty of the respondent, the city of Parkersburg, acting by and through its mayor and the respondents, the civil service commissioners, to reinstate the petitioner to his former position of lieutenant in the police department, which duty the respondents have failed and refused, and still fail and refuse, to discharge.

To this petition the respondents filed a joint and separate demurrer, which draws into issue the soundness of the petitioner's interpretation of Section 13, Chapter 57, Acts of the Legislature, 1937, which demurrer was overruled. Thereupon, the respondents filed their joint and several answer, denying that they have failed and refused to discharge their duties as alleged in the petition; that when the respondent mayor and the Council of the City of Parkersburg, met as required on August 2, 1949, for the purpose of preparing the budget of the city of Parkersburg for the fiscal year 1949-50, it was deemed by them necessary 'for purposes of economy' to reduce the number of paid members of the police department of the city of Parkersburg; that on that date the petitioner was more than fifty years of age, and had been in continuous service in the police department of the city for more than twenty years, to wit, twenty-three years, and, therefore, under Section 20, Article 6, Chapter 93, Acts of the Legislature, Regular Session, 1945 (Michie's West Virginia Code, Anno., 1949, 8-6-20), was eligible for retirement as a member of the police department with a pension of one hundred dollars a month during the remainder of his life; that the respondent, Golden Underwood, wrote a letter, dated August 2, 1949, notifying the petitioner that he was to be retired 'for purposes of economy', which letter is quoted verbatim in the respondents' answer; and that pursuant to such notification the Council of the city of Parkersburg, on August 23, 1949, ratified the action of the board of trustees of the policemen's pension or relief fund of the city of Parkersburg, by placing the petitioner upon the retirement roll of said city. Respondents' answer alleges that petitioner was duly and legally retired and received specified retirement payments; that on July 13, 1950, the petitioner wrote a letter to the respondent mayor, quoted verbatim in the answer, applying for immediate reinstatement as a lieutenant in the police department of the city of Parkersburg; and, finally, the answer alleges the legal conclusion, perhaps not appropriate in the answer, that the provision of Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937, dealing with the reinstatement of police officers, applies only to members of a police department who have been "suspended' pursuant to said Serial Section and does not apply to members of said department who have geen retired on pension.'

The answer contains in full a letter of the mayor, dated July 18, 1950, directed to the Council of the City of Parkersburg, stating that 'Being the appointing officer for the personnel of the police department', the respondent mayor desired to appoint for a probationary period of six months to the police department four named applicants, who had been certified to him by the secretary of the civil service commission of the city of Parkersburg.

The factual allegations of the petition and the joint and several answer were amply sustained by evidence adduced on behalf of both petitioner and respondents, which evidence fully establishes that the petitioner has served as a member of the police department of the city of Parkersburg, in continuous and honorable service for more than twenty years; that he was at the time of his retirement, as well as at the time of the trial, slightly over fifty-three years of age; and that he is in good health and physical condition, and able to resume his duties as a lieutenant of the police department of the city of Parkersburg.

On the basis of the foregoing the circuit court granted the writ, commanding the respondents to reinstate the petitioner to his position as a lieutenant in the police department.

Section 13, Chapter 57, Acts of the Legislature, Regular Session, 1937 ...