Jones v. Bayless, 35663

• Decision Date: 31 March 1953
• Docket Number: No. 35663,35663
• Citation: 208 Okla. 270,255 P.2d 506
• Parties: JONES et al. v. BAYLESS et al.
• Court: Oklahoma Supreme Court

Page 506

255 P.2d 506

208 Okla. 270

JONES et al. v. BAYLESS et al.

No. 35663.

Supreme Court of Oklahoma.

March 31, 1953.

Syllabus by the Court.

1. The same rules apply to the interpretation of municipal charters that apply to statutory enactments generally, and their purpose is to arrive at the intention of such charters' framers.

2. Where the wording of sections of a city charter is plain and unambiguous, and its meaning reasonable and practical in application, it must be accorded such meaning, and the courts, in determining its application, are not justified in reading additional words into it or in looking beyond it for a new or different meaning.

3. Section 2, Article XIV of the City Charter of Tulsa, Oklahoma, containing provisions that policemen shall not be removed except for cause and after written notice and an opportunity to be heard, etc., does not apply to demotions, promotions, and/or transfers from one rank of policeman to another.

4. In a case where the filing of a motion for a new trial is one of the prerequisites to an appeal, the Supreme Court will not review alleged errors not included in such a motion, especially where their consideration is unnecessary to a review of the judgment on the controlling issues of the case.

A. M. Widdows, Edmund Lashley and William M. Fleetwood, Jr., Tulsa, for plaintiffs in error.

Thurman S. Hurst, Saul A. Yager and Edwin S. Hurst, Tulsa, for defendants in error.

BLACKBIRD, Justice.

Defendants in error, Tulsa City policemen with ranks and grades varying from Sergeants to Captains, commenced this action as plaintiffs to restrain and enjoin plaintiffs in error, as defendants, from demoting them to other policemen's positions of inferior rank with attendant reductions in salary, responsibility and dignity.

The threatened demotions were to be made without regard to said plaintiffs' 'good behavior', without notice and hearing, not for economic or financial reasons, not for the purpose of reducing the number of policemen in the department, nor to reduce the number of positions within any one rank or grade, but in order to promote policemen of lesser rank to the positions now held by plaintiffs. Upon the filing of plaintiffs' verified petition alleging, among others, substantially the above facts, the trial court issued a temporary restraining order forbidding the threatened demotions.

Upon joinder of the issues and stipulation of such facts, and the introduction of evidence not now necessary to mention, the cause was tried without a jury. By judgment entered June 3, 1952, the court found the issues in favor of the plaintiffs and issued a permanent injunction against defendants. Thereafter defendants filed their motion for a new trial. It was heard and overruled on June 6, 1952. At said hearing the defendants gave notice of appeal and requested the court to fix a bond to be given by plaintiffs to indemnify them against any damages they might sustain, including reasonable attorney fees, in the event it was finally determined that the permanent injunction ought not to have been granted. The court acceded to this request and included in its order overruling defendants' motion for a new trial, a further order requiring plaintiffs to file such a bond in the amount of $10,000, within fifteen days, during which period the temporary restraining order granted before the trial was to continue in force and effect. The next day, plaintiffs filed an application to change said order insofar as it required the plaintiffs to give a bond, and upon a subsequent hearing held on this application thirteen days later or on June 20, 1952, defense counsel called the Police and Fire Commissioner to testify as to the amount of money the threatened demotions would have saved the City of Tulsa during each month that they were restrained and enjoined. The court, upon objection by the plaintiffs, refused to admit this testimony and entered an order vacating that part of its previous order on the motion for a new trial pertaining to the making and filing of the hereinbefore mentioned bond.

Defendants' appeal to this court is by petition in error and case-made. Our continued reference to the parties will be by their trial court designations.

Defendants' first proposition is that the trial court erred in holding for plaintiffs and determining, in effect, that the threatened demotions of plaintiffs constituted removals or discharges without a hearing, forbidden by Section 5 of Article XIV of the Tulsa City Charter. The pertinent parts of this article are as follows:

'Section 1. Amendment, amending paragraph 30, Article 11, of the Charter of the City of Tulsa, by repealing the same, and adopting in lieu thereof the following amendment relating to the qualification, appointment and tenure of policemen and members of the police department of the City of Tulsa, except the Chief of Police of said City, whose qualification, appointment and tenure is not included in this amendment, nor affected thereby.

'Section 2. * * * No person shall be eligible to appointment, or to be appointed, or serve as a policeman or member of the police department of the City of Tulsa who shall have been convicted of any offense, the punishment of which may be confinement in the State Penitentiary; nor shall any person be appointed who is not shown to be of good character, or who can not read and write the English language, or who does not possess ordinary physical strength and courage. All policemen or members of the police department, of the City of Tulsa shall hold their positions during good behavior, and shall not be removed from the same except for such cause as in the opinion of the Board of Commissioners render them unfit to remain in the service of the City, and after written notice, giving the grounds for such discharge or removal and an opportunity to be heard on such charges or reasons.

'Section 4. Finger print and Identification Members, Bertillonists, Mechanics Ballistic Experts and Radio Operators, being a special class of skilled members of the Police Department, in case of reduction of thier number, by abolishing any of their offices or positions therein, shall, when the number of such members are increased, be reinstated to their respective positions or offices in the same manner and procedure provided for reinstating other members in said department. And a decrease or increase in the number of policemen or members not belonging to the above class, shall, in no way affect the decrease or increase in the number of the above class of skilled members, nor their right of reinstatement to their respective positions.

'Section 5. Provided, however, that any policeman, or member, so removed shall, within thirty (30) days from the date of such removal, make written application or request to the police commissioner of the City of Tulsa for re-instatement. The person making such application or request shall retain a copy of same, upon which shall be endorsed the date of the service of the original notice upon the police commissioner of said City, and said Police Commissioner shall sign his name thereto. The original notice shall be immediately filed with the City Auditor of said City, who shall endorse thereon the date of such filing. Said original notice, or a copy thereof, so endorsed and signed, shall be evidence of the fact of the service of said notice.

'Section 6. Provided, further that such policeman, or member, must remain a resident of the City of Tulsa, and must be able to comply with all of the provisions of this Amendment, with reference to eligibility for the original appointment in said Police Department.

'Section 7. The term, 'member of the police deparmtent,' as used herein, means: All persons other than policemen appointed in said department whose duties are to assist in the operation and functioning of the police department of said City of Tulsa.' (Emphasis ours).

Plaintiffs contend and the trial court was evidently of the view that Section 2, above quoted, gives them the right to their respective positions unless 'removed' from them for cause rendering them, in the opinion of the Board of Commissioners, unfit to remain in the particular grade or rank in which they respectively are serving and they cite many cases in an attempt to show that a 'demotion' is a 'removal' within the terms of the quoted article. At the trial, some of the officers' commissions were introduced in evidence to show that they were issued for the duration of 'good behavior', while, defendants, on the other hand, introduced various exhibits referred to in their argument to show the history of Tulsa's municipal legislation on this subject and related ones and to demonstrate that it is not Article XIV's purpose to forbid demotions or promotions within the class of police department employees referred to in said article as 'policemen'.

If, as we view this article, its wording was not plain and unambiguous, then considerable reliance might need to be placed upon such evidence, to arrive at the true meaning and interpretation of the Article. But, as we view it, that is not the situation, and it is neither necessary nor appropriate to go outside of its provisions to determine its true meaning. 37 Am.Jur. p. 828, par. 187, and cases cited in Notes 17 and 18 thereto. In the cited text it is very aptly said: 'A court in construing an ordinance or charter must take its evident meaning as it reads * * *.' If its wording is plain, clear and unambiguous, it needs no aid from parol or other evidence, for its proper construction. 37 Am.Jur. p. 828, Note 19; City of Sylvania v. Hilton, 123 Ga. 754, 51 S.E. 744, 2 L.R.A.,N.S., 483, 107 Am.St.Rep. 162. If, at the same time its meaning is reasonable and practical in application and in view of the purposes the legislation was intended to serve and the objects sought to be accomplished, then the courts have no justifiable reason for, and no power to, go beyond said...