Myers v. Board of Directors of Tualatin Rural Fire Dist.

• Decision Date: 01 April 1971
• Citation: 92 Adv.Sh. 557,5 Or.App. 142,483 P.2d 95
• Parties: David B. MYERS, Respondent-Cross-Appellant, v. The BOARD OF DIRECTORS OF TUALATIN RURAL FIRE DISTRICT of the State of Oregon, and Ivan Jack, Glen Cumberland, Hans Gaarde, Charles Stearns, and Robert Saarinen, constituting members of said Board, Appellants-Cross-Respondents. James SHERWOOD, Respondent-Cross-Appellant, v. The BOARD OF DIRECTORS OF TUALATIN RURAL FIRE DISTRICT of the State of Oregon, and Ivan Jack, Glen Cumberland, Hans Gaarde, Charles Stearns, and Robert Saarinen, constituting members of said Board, Appellants-Cross-Respondents.
• Court: Oregon Court of Appeals

Page 95

483 P.2d 95

5 Or.App. 142

David B. MYERS, Respondent-Cross-Appellant, v. The BOARD OF DIRECTORS OF TUALATIN RURAL FIRE DISTRICT of

the State of Oregon, and Ivan Jack, Glen Cumberland, Hans

Gaarde, Charles Stearns, and Robert Saarinen, constituting

members of said Board, Appellants-Cross-Respondents.

James SHERWOOD, Respondent-Cross-Appellant, v. The BOARD OF DIRECTORS OF TUALATIN RURAL FIRE DISTRICT of

the State of Oregon, and Ivan Jack, Glen Cumberland, Hans

Gaarde, Charles Stearns, and Robert Saarinen, constituting

members of said Board, Appellants-Cross-Respondents.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Jan. 21, 1971.

Decided April 1, 1971.

Fred A. Anderson, Tigard, argued the cause for appellants--cross-respondents. With him on the briefs were Anderson & Dittman, Tigard.

David F. Rennie, Portland, argued the cause for respondents--cross-appellants. With him on the briefs were Parks, Teiser & Rennie, Portland.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

THORNTON, Judge.

This is a dispute between the Board of Directors of the Tualatin Rural Fire District and two discharged firemen over the right of the discharged employes to reinstatement to their former positions, with retroactive pay. Petitioners were employed by the fire district July 1, 1965, and were dismissed May 16, 1968, in a dispute over 'standby time' and other matters. Following their dismissal the employes each brought a mandamus proceeding to compel the directors to grant such relief. The two cases were consolidated for trial. The trial court ordered reinstatement but denied retroactive pay.

Both parties appealed, the directors appealing from the judgment of the lower court granting the writ, and the two firemen from the refusal of the trial court to grant retroactive pay.

The principal questions presented by the numerous assignments of error may be summarized as follows:

(1) Does the firemen's civil service act (ORS 242.702 to 242.824) apply to the Tualatin Rural Fire District? If so, did the fire district comply with the act?

(2) Is mandamus a proper remedy in this case?

(3) Did the trial court err in refusing to consider evidence of the reasons underlying the discharge of petitioners?

(4) Are petitioners entitled to reinstatement with back pay?

The salient facts are as follows:

The Tualatin Rural Fire District was organized under ORS ch. 478. In 1959 the Oregon legislature enacted a compulsory civil service law requiring substantially every political subdivision ¹ employing four or more full-time firemen, not including its fire chief, to establish a comprehensive civil service system for its fire department. This enactment, Oregon Laws 1959, ch. 252, is now codified as ORS 242.702 to 242.824. This statute will hereinafter be referred to as simply 'the Act.'

Section 47 of the Act provided that the law should take effect September 1, 1960.

Under the Act several steps were necessary to set up a civil service system for firemen including: (1) Appointment or confirmation by the governing body of the political subdivision of a civil service commission composed of three members; ² (2) the making by this commission of rules and regulations to 'provide in detail the manner in which examinations shall be held, and appointments, * * * reinstatements, suspensions and discharges shall be made'; (3) the classification by the commission of all of the firemen of the subdivision; and (4) the publication by the commission of all rules and regulations promulgated.

The Act specifically provides the procedure for dismissal, demotion, suspension or deprivation of privileges of all permanent employes, requires a written accusation to be served on the employe, requires a public hearing on demand and allows the employe to be represented by counsel. It also provides that if the commission finds that the dismissal 'was not made in good faith for cause, the commission shall order the immediate reinstatement of the employe * * *. Reinstatement shall be retroactive and entitle the dismissed employe to pay or compensation or special privileges from the time of dismissal * * *.'

Respondents failed to appoint a civil service commission as required by the above statute, nor did they take other steps required by the law. They contend that they established a comparable system and were therefore exempt from the Act as allowed by another section of the law (ORS 242.704).

The first question confronting us is the contention by respondents that the firemen's civil service law does not apply to respondents since 'ORS 242.702(8) (and) (9) restrict the application of said statutes to municipal organizations acting or authorized under ORS 476.310 to 476.340 to combat fire 'on Zone 2 rural lands. " Respondents urge that since they do not combat fire on zone 2 rural lands, they are not subject to the Act.

ORS 242.702(8) reads:

"Governing body' means the council or city commissioners of a city, the county court or board of county commissioners of a county, the board of directors of a rural fire protection district, the board of commissioners of a domestic water supply corporation and the county court or board of county commissioners acting under ORS 476.310 to 476.340 for the purposes of preventing and controlling fire on zone 2 rural lands.'

ORS 242.702(9) reads:

"Political subdivision' means any city, county, municipal corporation, rural fire protection district, domestic water supply corporation or Organization authorized under ORS 476.310 to 476.340 to combat fire on zone 2 rural lands which employs four or more full-time fire fighters, not including the chief of the fire department.' (Emphasis supplied.)

ORS 476.310 to 476.340 generally provide machinery whereby the governing body of each county, in cooperation with the State Board of Forestry, may zone certain rural lands 'lying outside the boundaries of incorporated cities, organized rural fire protection districts, federal and stateowned lands, lands protected under ORS chapter 477,' forest protection districts, etc., for the purpose of preventing and controlling fires.

The reference in the definition of political subdivision in ORS 242.702(9) to an

'* * * (O)rganization authorized under ORS 476.310 to 476.340 to combat fire on zone 2 rural lands * * *'

relates to the authority of the governing body of the county to zone lands not otherwise protected by fire fighting districts or organizations into zone 1 and zone 2. ORS 476.310(1).

Zone 1 is composed of 'forest, range, grass or undeveloped lands, or any of such lands intermingled with grazing and agricultural lands.' ORS 476.310(1) (a).

Zone 2 is composed of 'rural lands not included in zone 1.' ORS 476.310(1) (b).

For the purpose of preventing and controlling fires in zone 2 lands, the county is authorized under ORS 476.330(1) to

'* * * (E)stablish and maintain fire fighting and fire control facilities and contract with existing fire control agencies, either individuals, associations, corporations, cities or rural fire protection districts * * *.'

Respondents would interpret the Act so that it would not apply to any political subdivision whatever unless it combats fire on zone 2 rural lands. It is manifest that the object of the statutory definition of 'governing body' in ORS 242.702(8) and of 'political subdivision' in ORS 242.702(9) and ORS 242.704(1) is to put under civil service all political subdivisions which do not have a civil service system and which have four or more full-time fire fighters.

The principles of statutory construction applicable here were stated in Holman Tfr. Co. et al v. Portland et al., 196 Or. 551, 565, 249 P.2d 175, 182, 250 P.2d 929 (1952):

'* * * A statute is to be construed with reference to its manifest object, and, if the language is susceptible of two constructions, one which will carry out and the other defeat such manifest object, it should receive the former construction. 2 Sutherland, Statutory Construction (3d ed), 338, Sec. 4704 * * *.'

Next, as to respondents' contention that the district had established a comparable civil service system, the lower court held that since (1) no written notice of charges was served on the petitioners, (2) the right to counsel had been denied, (3) no independent review board was established and (4) no civil service commission was ever appointed, the substitute system was not acceptable in lieu of the statutory civil service system. We agree that respondents had not complied with the Act. ORS 242.704.

Mandamus was a proper remedy in this case. ³ State ex rel. Maizels v. Juba, 254 Or. 323, 460 P.2d 850 (1969); Nelson v. Baker et al., 112 Or. 79, 227 P. 301, 228 P. 916 (1924); Richards v. District School Board, 78 Or. 621, 153 P. 482 (1915).

Where mandamus lies to reinstate a civil service employe who has been dismissed from his position in violation of civil service laws, reasons or causes for dismissal are immaterial. Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 180 P.2d 949 (1947). The trial court did not err in refusing to hear evidence and testimony offered by the district as to the alleged reasons for dismissal. Under the Act this was the function of the civil service board which, in this case, was never appointed as required by the Act. Ahlstedt v. Board of Education, supra.

Respondents contend that by their failure to put the Act into effect petitioners have been deprived of the benefits of the Act, including retroactive reinstatement.

The case at bar is very similar to two cases cited by petitioners. In Simpson v. City of Grand Island, 166 Neb. 393, 89 N.W.2d 117 (1958), a city council refused to appoint a civil service commission and to take other steps necessary to bring the city within the coverage of a civil service act which the city was compelled, by state law, to adopt. Plaintiff in that case was dismissed from the police department without proper civil service procedures. The Supreme Court of Nebraska...