State, ex rel. Marrow v. City of Lincoln
| Decision Date | 16 March 1917 |
| Docket Number | 19901 |
| Citation | 162 N.W. 138,101 Neb. 57 |
| Parties | STATE, EX REL. WILLIAM P. MARROW, APPELLANT, v. CITY OF LINCOLN ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Reversed, with directions.
REVERSED.
Fawcett & Mockett, L. C. Burr and J. A. De Bardeleben, for appellant.
C Petrus Peterson, George W. Berge and Charles R. Wilke contra.
DEAN, J. CORNISH, J., not sitting. SEDGWICK, J., concurring. ROSE, J., dissenting, LETTON, J., joins in this dissent.
In April, 1912, the city of Lincoln adopted and it is now governed by the commission form of government in pursuance of the provisions of the Banning law (Laws 1911, ch. 24) being sections 5288-5311, Rev. St. 1913. This is an application for a writ of mandamus brought in the district court for Lancaster county by William P. Marrow, relator and appellant, against the city of Lincoln, defendant and appellee, to compel the city to reinstate him in the fire department of the city as assistant fire chief, from which position he was peremptorily discharged by the mayor and city council. The writ was denied, and relator has brought the case here for review.
Relator's employment in the city's fire department commenced on July 2, 1911, at a monthly salary of $ 75, and at subsequent periods he was promoted to the positions of lieutenant and captain and assistant fire chief, in the latter position his monthly salary being $ 100. It was while in this position that he was discharged by order of the commission, a body consisting of five members, in pursuance of a resolution passed on December 31, 1915, by four members of the city council. The order of discharge briefly recites that the services of relator, as a "member of the fire department, be and the same are hereby dispensed with." The resolution by its terms became effective immediately on its passage. No charges were filed by the council nor by any person against relator, and it follows that he had no hearing before the council. The testimony introduced by relator in the district court disclosed that he was a capable and efficient officer in the several capacities in which he had served in the city's fire department. The city did not offer any testimony.
Relator argues that in view of the premises the city council was without lawful authority to dismiss him. Defendant contends that it was justified in discharging relator peremptorily and that in the premises its acts are within the law. To determine the controversy between the parties it becomes necessary to construe so much of the Banning law and the fireman's pension act as apply to the facts in the case before us. The title to the Banning act and section 13 thereof follow:
"An act for the government of all cities having, according to the last preceding state or national census, five thousand or more population, and to enable such cities to adopt the provisions of this act called the 'commission plan of city government.'"
Section 13 (Rev. St. 1913, sec. 5300):
The modern writers and authorities generally hold that, in case of doubt as to the meaning of a statute, resort may be had to the title of the act as an aid to discover the legislative intent, but of course by no means to enlarge the scope of the statute so as to include a subject not fairly expressed in the body of the act. And this is particularly the case in a state where the Constitution requires the subject of the act to be expressed in the title. Black, Interpretation of Laws (2d ed.) sec. 83; 2 Sutherland (Lewis') Statutory Construction (2d ed.) sec. 339. In the present case it will be noted that the title refers to "all cities having * * * five thousand or more population."
Defendant contends both in the oral argument and in its brief that cities of the class of Lincoln have an unrestricted right to remove at any time any employee without the formality of preferring or filing charges and without such employee being given an opportunity to be heard in his defense. In its brief it prints in full section 5300 above referred to, and in italics these words, "Any such officers or any assistant or employee elected or appointed by the council may be removed by the council at any time," and argues that "the power of removal is by that section (5300) given to the city of Lincoln unrestricted, to be exercised in their discretion and at their pleasure, and any officer or employee so appointed holds his office in their discretion and at their pleasure."
To consistently maintain its argument the city must also contend that the words "such officer or employee" in that part of the section following the word "provided" relate only to the officers named in the proviso. If "in cities of the metropolitan class no member or officer of the * * * fire department * * * shall be discharged for political reasons," why the necessity of having such "member or officer" of a city of the metropolitan class safeguarded against a discharge "for political reasons" when he cannot at all be discharged for those reasons? We hold that the proviso clause of the section under consideration begins with the words, "Provided, however," and ends with the words, "departments for political reasons." So read, the proviso is complete in itself, and construed in the light of the other parts of the act and other statutes it was so intended by the legislature. Any other construction of that statute is too refined for practical use. We cannot give our assent to the defendant's argument, nor to the judgment pronounced by the learned trial court.
Mr. Justice Story in Minis v. United States, 15 Pet. (U.S.) * 423, speaking for the supreme court of the United States, says: "The office of the proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended by the legislature to be brought within its purview."
A rule of statutory construction is admirably stated in the early case of Hagenbuck v. Reed, 3 Neb. 17, cited in syllabus 1 herein: "In the construction of a statute, * * * no sentence, clause or word should be rejected as meaningless or superfluous, if it can be avoided; but the subject of the enactment and the language employed, in its plain, ordinary and popular sense, should be taken into account, in order to determine the legislative will."
Applying the foregoing rule to the present case, we find the proviso is so plain that it is not susceptible of strained construction. It provides on the point involved that "no member or officer of" the several departments of a metropolitan city that are embraced within its terms "shall be discharged for political reasons." The proviso does not use the word "employee." That word is first used in section 5300, immediately preceding the proviso in this connection "Any such officers or any assistant or employee elected or appointed by the council may be removed by the council at any time." The next use of the word "employee" is found in the language immediately following the proviso, where it is used twice: "Before any such officer or employee can be discharged charges must be filed against him before the council and a hearing had thereon, and an opportunity given such officer or employee to defend against such charges." Clearly the designation "officer" and "employee," as used in the language following the proviso, relates back to...
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