Bonnette v. Karst

TATE, Justice.

The writer respectfully dissents.

The majority construes a civil service-enactment as providing lifetime tenure for firemen and policemen in municipalities of from 13,000 to 250,000, and it therefore invalidates legislation (La.R.S. 42:691) which provides for mandatory retirement at age-*86865 of all governmental employees.1 In so doing, the majority has failed to consider the legislative purpose of the entire civil service enactment; it has interpreted an isolated phrase in it unreasonably and contrary to any possible intention, taking into consideration the statutory history and context and laws in pari materia.

Before discussing the pertinent Louisiana legislation in detail, it may be well to consider the general purpose of civil service enactments prohibiting removal of classified employees "during good behaviour” and except for cause. In rejecting contentions quite similar to those here made by the appellee firemen, the Supreme Court of Colorado stated the uniform authority as follows, Coopersmith v. City and County of Denver, 156 Colo. 469, 399 P.2d 943, 948 (1967):

“The purpose of civil service legislation is to protect employees from arbitrary and capricious political action and to insure employment during good behaviour. Such protection applies during authorized service. Civil service tenure, however, is not meant to guarantee duration of employment for any number of years or over any particular period of time.”2

The writer hopes to show, by analysis of pertinent Louisiana legislation, that the majority fell into error by ignoring the legislative purpose motivating enactment of civil service protection for employees, and by failing to take into account the general statutory scheme in Louisiana, by which retirement and retirement-ages are regulated by enactments separate and distinct from the civil service legislation regulating the employment.

In the present instance, the majority finds that firemen and policemen of municipalities of 13,000 to 250,000 have tenures until they die and that they cannot be removed so long as they breathe (live), except by disciplinary proceedings. Thus, if the majority is correct, old and honored employees, too old any longer to perform their arduous and dangerous duties, may *870nevertheless not be terminated in employment, except after the ordeal and disgrace of a disciplinary hearing finding cause, such as physical infirmity.

The majority reaches this conclusion because of an isolated phrase within a provision relating solely to disciplinary proceedings and removals for cause. The phrase in question (“during good behaviour”) is found within Section 30 of Article XIV, 15.1 of our State Constitution. Article XIV, 15.1 is entitled “Fire and police civil service; municipalities of 13,000 to 250,-000”. Section 30 thereof is entitled “Corrective and Disciplinary Action for Maintaining Standards of Service.”

Within this Section 30 (which concerns solely disciplinary proceedings and removals for cause) is contained Sub-section (a), including the italicized phrase upon which the majority relies in conferring lifetime tenures upon these employees. Sub-section (a) provides: “The tenure of persons who have been regularly and permanently inducted into positions of classified service shall be during good behaviour. However the appointing authority may remove any employee * * * for any one of the following reasons: * * * [Then 15 causes for disciplinary action are listed.]” (Italics ours.)

Thus, the purpose of the sub-section in question is simply to provide for disciplinary removal for cause dtiring employment of fire and police civil service employees. However, the majority finds that the introductory provision (that their tenure “shall be during good behaviour”) is a positive enactment that their employment is for life — a “tenure” found nowhere else in Louisiana pertaining to any other type of state or local govermental employment in this state.

I should here note there is a complete absence of explanation for any legislative reason or legislative intention to confer this bizarre status alone upon policemen and firemen in municipalities of the population noted — no other policemen and firemen in the state are afforded such a unique lifetime employment, not subject to mandatory retirement, and neither are any other governmental employees or officers of this state. I venture to say that this sort of lifetime appointment, continuing despite superannuation, is virtually unknown in American history since Andrew Jackson chased out the decrepit Federalist employees in 1828.

As I shall attempt to show, within the entire statutory scheme, the legislative intent of the cited provision was only to provide for removal for cause during tenure (employment) before retirement. The provision was never intended to regulate legislative provisions for retirement and pension systems, including systems which provide for retirement at a mandatory age, as *87265, such as that vjhich we here invalidate as unconstitutional, La.R.S. 42:691.

Article 15.1, providing for constitutional protection for fire and police civil service in municipalities of population noted, was added by amendment to our state constitution in 1952. The enactment is an almost verbatim incorporation into the state constitution, by amendment, of the formerly statutory “Municipal Fire and Police Civil Service Law”, which is found in our Revised Statutes of 1950 as La.R.S. 33:2471 to 33:2508.3 These statutory sections, in turn, represented the redaction into the 1950 Revised Statutes of the fire and police civil service enactment, Act 102 of 1944 (with a few intervening legislative amendments to it, not here material). The purpose of this Municipal Fire and Police Civil Service Law was simply to provide civil service regulation covering the “classification of positions, the appointment, promotion, transfer, demotion, reinstatement, layoff, removal, re-employment, and discipline” of the fire and police employees in question. Section 1, Act 102 of 1944. It was never intended to regulate their retirement or provisions relating to or requiring such retirement for age.

In the context of contemporaneous law, the Municipal Fire and Police Civil Service Law, La.R.S. 33 :2471-33:2508 (constitutionalized as Art. XIV, Section 15.1) regulated only the above-described incidents of employment of municipal firemen and policemen, i. e., classification, demotion, removal for cause, etc. Other statutory provisions regulated the retirement and pensions of policemen and firemen. For instance, La.R.S. 33:2021-33:2043 (1950) provided for pensions and benefits to firemen in municipalities of under 25,-000, including retirement pensions after only 25 years of service, La.R.S. 33:2036, subd. G. Again, La.R.S. 33 :2221-33:2242 provided for pensions and relief of policemen in municipalities between 10,000 and 250,000, including retirement pensions after only 25 years of service. La.R.S. 33:2234 (1950). Other statutory provisions permitted establishment of pension and.retirement systems for other municipal employees. See La.R.S. 33:1762 (1950), 33:1781 (as added in 1954), and 33:2425 (1950).

Correlatively, the general statutory scheme regulating firemen and policemen of New Orleans (the only municipality then over 250,000) was the same. Civil service protection during employment, including their removal for cause, was (as of 1952) regulated by a constitutional enactment. Article XIV, Section 15. On the other hand, their pension and retirement rights were regulated by separate enactments. La.R.S. 33:2101-33:2120 (1950) regulated the retirement of New Orleans *874firemen, including provisions to encourage retirement after only 20 years, La.R.S. 33:2117. La.R.S. 33 :2281-33 :2304 provided for retirement of New Orleans policemen, including provisions to encourage retirement after twenty years of service, La.R.S. 33 :2294.

The same statutory scheme is manifested for employees of the state government. Civil service protection is afforded for them by one enactment (as of 1952, La. Const. Article XIV, Section 15). However, their retirement system is regulated by a separate and different enactment, La. R.S. 42:541-42:672, which even in 1952 provided for mandatory retirement at age 65, La.R.S. 42:585.4

This general (i. e., non-firemen and police) civil service provision, Article XIV, Section 15 provides that no person having permanent civil service status “shall be demoted, dismissed, or discriminated against, except for cause * * Section (N) (1). An interpretation of this isolated provision out of context — an interpretation identical, in fact, to that given by the present majority to the corresponding provision of the municipal fire and police civil service law — will require this court to hold that the legislature intended life tenure for all civil service employees of the state and cities. This, we know, the legislature positively did not intend by such language— for even then there was the mandatory retirement at age 65 of state employees subject to civil service, La.R.S. 42:585 (1950) (see at footnote 4 above).

Thus, by the statutory scheme, civil service enactments were intended to regulate classified employment and disciplinary actions for cause during such employment. They were never intended to regulate the conditions of retirement, including a mandatory age limit.

Instead, retirement was regulated by other and different enactments. The regulation of retirement and retirement ages was simply not regarded by the legislature as within the scope of a civil service enactment.

At the time the Municipal Fire and Police Civil Service Law, formerly statutory, was, verbatim, constitutionalized in 1952, the concept of a statutory mandatory retirement age was a recognized aspect of retirement legislation. See, for example, from 1950 Revised Statutes: 17:634, 17:852 (school teachers); 17:912 (state school employees); 17:1122 (Orleans school employees); 42:585 (state civil service employees). See also La.R.S. 33:2117 (as amended by Act 212 of 1954) (New Or*876leans firemen) and 33:2295 (as amended by Act 213 of 1954) (New Orleans policemen), providing mandatory retirement ages for New Orleans firemen and policemen. See also, e. g., Act 222 of 1938, establishing a firemen’s pension fund for Shreveport firemen, especially Section 12 (g), establishing a mandatory retirement age of 60 for Shreveport firemen.

In its statutory context, La.R.S. 33 :2500 (1950) simply provided for disciplinary and corrective proceedings concerning firemen and policemen; it did not contemplate lifetime tenure. By the phrase that such employees had civil service tenure “during good behaviour”, the statute simply meant they could not be removed during their civil service tenure except for cause. The phrase did not contemplate that the legislature could never amend the separate and distinct retirement legislation so as to provide for a mandatory retirement age. Such sort of regulation was within the scope of this latter retirement legislation; it was not intended to be covered by or to be within the scope of the civil service protection legislation.

I can see no reason whatsoever, and no reason whatsoever is ascribed, why this provision should change in meaning when it becomes incorporated into the constitution as Section 30, Article XIV, 15.1 (1952). The provision had the same meaning after, as before, constitutionalization —a meaning which never included nor includes any legislative intention that civil service status conferred lifetime tenure upon these firemen and policemen in these particular municipalities, alone in all our state not subject to reasonable legislation providing for a mandatory retirement age*

In summary, when we construe the Municipal Fire and Police Civil Service Law as a whole, and in the context of statutory regulations in pari materia, the legislative intent of the Section 30 was simply to' regulate disciplinary grounds for removal, etc., during the pre-retirement tenure of employment. The regulation of retirement, including mandatory ages therefor, is completely outside the scope of legislative intent expressed by the section, for retirement regulations were within the scope of separate and distinct enactments.

Moreover, within the general scheme of police and fire employment regulation, the thrust of the retirement provisions is to afford substantial benefits after only twenty or twenty-five years’ service, in order to attract younger men and to encourage them to retire early. The apparent legislative reason is this: The of ten-hazardous and the arduous duties of these valued public servants, civilization’s front-line troops in the protection of the public, can, of course, best be performed by younger men, with the police and fire forces constantly replenished by new young recruits.

It is thus inconceivable that the legislature, attempting to encourage recruitment *878of younger men into the police and fire forces, and their retirement after twenty years’ service, would at the same time freeze into lifetime appointments (alone of all public employees and officials of Louisiana) such employees (and in only certain municipalities), thus subject to retirement for superannuation only by distasteful disciplinary proceedings.

In my opinion, the majority therefore erred in giving the isolated phrase (“during good behaviour”) a literal application, without regard to its legislative purpose and the phrase’s context in the entire scheme of statutory regulation. See Civil Code Articles 17, 18; State v. Seals, 255 La. 1005, 233 So.2d 914 (1970); State v. Roberson, 225 La. 74, 72 So.2d 265 (1954). Each portion of a constitutional provision is to be interpreted in the light of the whole, to give effect to the true legislative intent. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949). A literal interpretation of a portion should be disregarded in favor of the intent of the legislative purpose of the entire provision. State ex rel. Fernandez v. Feucht, 182 La. 134, 161 So. 179 (1935).

In determining the meaning of an enactment, the object is to ascertain the true legislative intent; where a literal construction produces a strained or absurd result, the letter of the law must give way to its spirit and the legislative result reasonably intended. Gremillion v. Louisiana Public Service Commission, 186 La. 295, 172 So. 163 (1937). The courts should construe an enactment to give effect to the true legislative intent; broad and comprehensive language not reasonably intended to apply to a particular situation must be restricted “within narrower limits than its words import, if the Court is satisfied that their literal meaning would extend to cases which the legislature never intended to include.” State ex rel. Thompson v. Department of City Civil Service, 214 La. 683, 38 So.2d 385, 388 (1949).5

Applying these principles of statutory interpretation, the most reasonable construction of Section 30 is that, within its scope and the scope of the entire Article (which was not intended to regulate retirement), classified employees shall not be disciplined6 except for cause — , i. e., “during good behaviour” means literally that they shall not be dismissed or disciplined so long as they behave themselves and maintain an appropriate standard of conduct.

*880Other jurisdictions," when faced with similar contentions that subsequent mandatory retirement legislation can curtail civil service tenure, have almost uniformly held that civil service status was not intended to confer lifetime employment upon the employee; that it was only protection for faithful and obedient public service and against dismissal during normal tenure, except as based upon misconduct or incompetence. Coopersmith v. City and County of Denver, 156 Colo. 469, 399 P.2d 943 (1965); Jordan v. Metropolitan Sanitary District, 15 Ill.2d 369, 155 N.E.2d 297 (1959); Boyle v. City of Philadelphia, 338 Pa. 129, 12 A.2d 43 (1940). See also: Beynon v. City of Scranton, 212 Pa.Super. 526, 243 A.2d 190 (1968). Contra: Reed v. City of Youngstown, 173 Ohio St. 265, 181 N.E.2d 700 (1962).

Closely analagous to the present situation is that decided by the Boyle case, cited above. City firemen and policemen were protected by state civil service legislation, which provided they could not be removed or discharged except for cause. Subsequently, a city ordinance was " enacted requiring mandatory retirement at 65 (at age 60 in certain categories) of this city’s firemen and policemen. In holding valid the municipal regulation of retirement (where retirement was not within the scope of the state civil service legislation), the Supreme Court of Pennsylvania pointed out, 12 A.2d 45 :

“Demotion or removal based upon a general, nondiscriminatory age limitation does not contravene * * * [the governing state civil service legislation], wherein it is provided that policemen and firemen shall not be removed or discharged, except for cause, upon written charges, and after a public hearing. The purpose of all civil service legislation is to insure service during good behaviour, and to protect employees against improper personal attack. The protection holds during service, but does not guarantee duration of service over any particular period time * * 7

*882In conclusion, I strongly believe my esteemed brothers of the majority have fallen into error by so applying an isolated phrase in a civil service provision solely regulating disciplinary proceedings. In my respectful opinion, the majority has construed the provision unreasonably and contrary to any legislative intent to confer upon this particular category of employees .a lifetime tenure, although firemen and policemen of other cities and although no other governmental employees of our •state have such tenure, previously unknown to our state and local governments •of Louisiana.

For these reasons, perhaps too fully stated, I respectfully dissent.

BARHAM, J., concurs.

. La.R.S. 42:691 (Act 54 of 1958) provides for mandatory retirement at age 65 of all employees of the state or its subdivisions who are covered by any retirement system or by federal social security. However, the enactment permits the year-to-year retention of employees over 65, when the appointing authority certifies their continuance in employment "would be advantageous to the public service by reason of * * * expert knowledge and qualifications.” The majority holds this act unconstitutional insofar as firemen and policemen (employed by municipalities 13,000 to 250,000) because of its conflict with the alleged life tenure provision (Section 30) of the Municipal Pire and Police Oivil Service Law (Art. XIV, Section 15.1, La. Constitution).

. Pertinently as to the present issue, the court also stated, 399 P.2d 948: “As to rights protected by civil service, it has been held that mandatory retirement provisions do not contravene a civil service requirement that firemen can only be removed for cause and then only after following the requisite procedure of giving notice and holding a hearing.”

. The constitutional Section 30, for instance, is found verbatim as La.R.S. 33 -.2500.

. The provision also provides for continuance on a year by year basis after 65, upon written application of employee and his employer, if such continued employment would be “advantageous to the state service by reason of * * * expert knowledge and qualifications.”

. The latter case concerns the judicial exclusion from coverage by a civil service enactment of a municipal officer (an appointed judge of Recorder’s Court). Such officer was within the literal terms of the enactment, but was not reasonably intended to be included (the court held), in light of statutory history, context, and general principles of governmental civil service regulation.

. Section 30 is entitled “Corrective and Disciplinary Action for Maintaining Standards of Service.”

. The court also observed, in finding a reasonable legislative basis for mandatory retirement for policemen and firemen, 12 A.2d 44: “ * * * Experience has demonstated that generally one who has attained the age of sixty or sixty-five years does not possess the physical vitality or energy of a younger man. Some maximum age limitation is particularly desirable, in fact necessary, for hoseman, ladderman, and patrolman, because the duties of these positions demand a greater degree of physical vigor and alertness than that exacted of superior officers. Such employees are frequently required to perform work which is strenuous and dangerous. They must possess physical fitness and a mental attitude that will cause them to disregard safety in the public service. While there are some individual exceptions, it is undoubted that the man of sixty is not as physically able to perform exhausting duties as is a younger man. Certainly, it is also true that he has developed a mental attitude of caution to danger that would be disre*882garded by one more youthful. Acts of strength, endurance, and bravery are not usually performed by men of three score years. They are generally physically incapable of such action.”