Spradling v. Hutchinson

• Decision Date: 13 March 1979
• Docket Number: No. 13685,13685
• Parties: R. W. SPRADLING, etc., et al. v. John G. HUTCHINSON, etc., et al., Police Civil Service Commission.
• Court: West Virginia Supreme Court

Page 371

253 S.E.2d 371

162 W.Va. 768

R. W. SPRADLING, etc., et al. v. John G. HUTCHINSON, etc., et al., Police Civil Service Commission.

No. 13685.

Supreme Court of Appeals of West Virginia.

March 13, 1979.

Dissenting Opinion March 19, 1979.

Syllabus by the Court

1. An affirmation that "I hereby certify that there are no willful misrepresentations in, or falsifications of, the above statements and answers to questions" satisfies the requirement of W.Va.Code, 8-14-12 that applicants for appointment as policemen make oath or affirmation to the truth of their answers on application forms.

2. The requirement of Code, 8-14-12 that an applicant for appointment as a policeman must have been a resident of the city to which he is applying or of a county in which part of the city is situate for at least one year at any time prior to the date of his application, is unconstitutional because there is no rational basis for the restriction it imposes upon the fundamental constitutional right to travel, nor is there any compelling state interest for the requirement.

3. The statutory requirement in Code, 8-14-12 that no applicant for original appointment to be a policeman shall be "more than thirty-five years of age at the date of his application" allows application by persons who have attained their thirty-fifth year but have not attained their thirty-sixth birthday.

Catsonis & Linkous, Leo Catsonis and Thomas L. Linkous, Charleston, for appellants.

Jackson, Kelly, Holt & O'Farrell and W. W. Upton, Bowles, McDavid, Graff & Love and F. T. Graff, Jr., Charleston, for appellees.

HARSHBARGER, Justice:

Thirteen applicants were selected by the Police Civil Service Commission for the City of Charleston for final appointment to the Charleston Police Department and were to be sworn in November 4, 1974. But on November 1 the Fraternal Order of Police petitioned for an injunction against their induction. A temporary injunction was issued but then, after hearings, permanent injunction was refused by the Kanawha County Circuit Court.

The Fraternal Order of Police appealed, contending as it did in the trial court, that the applicants did not comply with W.Va.Code, 8-14-12. ¹ Specifically, the FOP alleges that the applications of the thirteen failed to comply with a mandate of Code, 8-14-12, that applicants must state under oath or affirmation certain information; ² two applicants did not meet residency requirements; ³ and one was older than allowed.

We find that the application forms signed by the thirteen meet the statutory requirement of oath or affirmation. The forms contained this language: "I HEREBY CERTIFY THAT THERE ARE NO WILLFUL MISREPRESENTATIONS IN, OR FALSIFICATIONS OF, THE ABOVE STATEMENTS AND ANSWERS TO QUESTIONS." Then followed the signature lines.

An oath or affirmation is a subscription to the truth of that to which it is made. See, In re Rice, 35 Ill.App.2d 79, 181 N.E.2d 742 (1962); Greenwald v. State, 221 Md. 235, 155 A.2d 894 (1960); and Spangler v. District Court of Salt Lake County, 104 Utah 584, 140 P.2d 755 (1943).

In State v. Nuckols, 152 W.Va. 736, 166 S.E.2d 3 (1968), we said: "The word 'oath' in this state includes both swearing and affirming. . . ." 152 W.Va. at 748, 166 S.E.2d at 11. ⁴ The Random House Dictionary (1973), defines 'certify' as "1. to attest to or vouch for in writing . . .." It defines 'affirm' "1. to state or assert positively; maintain as true . . . 2. to confirm or ratify . . . 4. to declare solemnly before a court or magistrate, but without oath." We discern no difference between an affirmation or truth, and a certification of truth. They both vouch for truthfulness.

The second issue in this appeal is the constitutionality of the residency requirement of Code, 8-14-12. ⁵ The general rule is that statutes regulating appointments under civil service are mandatory and must be strictly complied with and construed. Cawley v. Board of Trustees, 138 W.Va. 571, 76 S.E.2d 683 (1953). In particular, we have held that the police civil service commission "owes its creation and existence to statute. It has no inherent powers . . . (but) only such powers as are conferred upon it by statute, either expressly or by necessary or fair implication." State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 681, 143 S.E.2d 535, 542 (1965). See also : Miller v. City of Morgantown, W.Va., 208 S.E.2d 780 (1974) and State ex rel. City of Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970).

Thus, the Charleston Police Civil Service Commission cannot legally act beyond the powers bestowed upon it by statute (8-14-12) and must strictly abide by the requirements in that law. Since the statute clearly states that an applicant must have been a resident of the city to which he is applying, for at least one year prior to the date of his application, the question is whether the commission acted Ultra vires by certifying applicants for police officers who did not meet the residency requirement of the statute, or whether the requirement itself is void, as contended by appellees.

Residence requirements have been discussed in numerous cases since Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), when the United States Supreme Court recognized the right to travel as a fundamental constitutional right and struck down a state statute requiring one year residency prior to seeking welfare assistance. The Court found that the durational requirement divided welfare applicants into two groups "indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference the first class is granted and the second class is denied welfare aid upon which may depend the ability of the families to obtain the very means to subsist food, shelter, and other necessities of life." 394 U.S. at 627, 89 S.Ct. at 1327. Because the requirement infringed upon the right to travel, a fundamental constitutional right, by denying welfare benefits to those who had exercised it, the Court applied the compelling state interest test, and then held the requirement violated the equal protection clause because there was no such interest. Id. at 634, 89 S.Ct. 1322.

After Shapiro, the Court found that durational residency requirements for eligibility to vote ⁶ and for hospital and medical services ⁷ unconstitutionally infringe upon an individual's fundamental right to travel.

Then, in McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976), a Philadelphia municipal regulation requiring that city employees be residents of the city, was upheld. Emphasizing the novelty of the particular question it must decide the validity of a requirement that a person be a resident At the time of his application, the Court said:

We have previously differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration. Thus in Shapiro, supra, 394 U.S. at 636, 89 S.Ct. (1322) at 1332, we stated: "The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites." And in Memorial Hospital, supra, 415 U.S. at 255, 94 S.Ct. (1076), at 1081, quoting Dunn, supra, 405 U.S. at 342 n. 13, 92 S.Ct. 995, the Court explained that Shapiro and Dunn did not question " 'the validity of appropriately defined and uniformly applied bona fide residence requirements.' " 424 U.S. at 647, 96 S.Ct. at 1155.

Numerous lower federal and state courts have decided residency requirement issues. After the Supreme Court cases, some adopted the fundamental "right to travel" rationale, then applied the strict compelling state interest test to invalidate the requirements, ⁸ and at least one federal court has applied the same reasoning but found the necessary compelling state interests. ⁹ However, more often, to uphold statutory residency requirements for firemen and policemen, courts have found that they do not penalize the fundamental right to travel, ¹⁰ and hence, need not be justified by a compelling state interest, but merely have a rational basis. See Andre v. Board of Trustees of Village of Maywood, 561 F.2d 48 (7th Cir. 1977); Wright v. City of Jackson, Mississippi, 506 F.2d 900 (5th Cir. 1975); Miller v. Krawczyk, 414 F.Supp. 998 (E.D.Wis.1976); Ector v. City of Torrence, 10 Cal.3d 129, 109 Cal.Rptr. 849, 514 P.2d 433 (1973), Cert. denied, 415 U.S. 935, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1974); Detroit Police Officers Association v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), appeal dismissed for lack of a substantial federal question, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972); Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So.2d 767 (Miss.1972); Abrahams v. Civil Service Commission, 65 N.J. 61, 319 A.2d 483 (1974); Jackson v. Firemen's and Policemen's Civil Service Commission of Galveston, Tex.Civ.App., 466 S.W.2d 412 (1971); Salt lake City Fire Fighters Local 1645 v. Salt Lake City, 22 Utah 2d 115, 449 P.2d 239 (1969).

Among the bases often asserted as justification for municipal residency requirements in the latter group of cases are those quoted from Ector, supra, in Justice Pashman's dissenting opinion in Abrahams, supra:

(P)romotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city's conditions and by a feeling of greater personal stake in the city's progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees' salaries. (Citation omitted) 319 A.2d at...