Bonnette v. Karst

On Rehearing

TATE, Justice.

The facts are fully stated in our original •opinion. In essence, three firemen over •65 years of age sue to enjoin their employer, The City of Alexandria, and its officers from applying to them a state statute requiring their retirement at age 65.

The state statute (La.R.S. 42:691 1) provides a mandatory retirement for all employees of the state and political subdivisions thereof. In our original opinion, which we now recall, we affirmed a holding that this statute was unconstitutional insofar as affecting firemen in municipalities of 13,000 to 250,000 in population. We held such firemen, uniquely among governmental employees of this state, enjoyed tenure until death and, until then, were removable only for cause.

We reached this conclusion because of a provision in the constitutional enactment which provides civil service tenure to firemen of the municipalities in the noted population range. Article XIV, Section 15.1, La. Constitution (as added in 1952). The provision, found in a subsection entitled “Corrective and Disciplinary Action for Maintaining Standards of Service”, Section 15.1(30), states: “The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behaviour.” (Italics ours.)

On rehearing, we conclude we were in error in construing this isolated *884phrase (“during good behaviour”) as conferring lifetime tenure. In the context of the provision in which found and of the firemen’s civil service enactment as a whole, the phrase simply means that the firemen shall not he removed except for cause during their civil service tenure. For reasons to be more fully stated below, we find that the constitutional enactment providing civil service protection for firemen of the municipalities in question was not intended to and did not within its scope encompass the regulation of retirement, mandatory or otherwise. Instead, retirement was intended to be, and was, regulated by other statutory provisions.

At the outset, we are met with the contention that the provision that the civil service tenure of firemen (in the municipalities in question) “shall be during good behaviour” unambiguously provides lifetime tenure. The petitioners then recite with confidence Article 13 of our Civil Code: “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

This principle would of course apply if the constitutional enactment disclosed an unambiguous legislative intent that firemen of municipalities 13,000 to 250,000 in population enjoy lifetime tenure. However, the ambiguity of a statute may arise not only from not easily understood wording.

As we stated recently in Matlack, Inc. v. Louisiana Public Service Commission, 260 La. 359, 256 So.2d 118, 121 (1971): “ ‘Ambiguity of statutes may arise otherwise than from fault of expression. An ambiguity justifying the interpretation of a statute, is not simply that arising from the meaning of particular words, but includes such as may arise in respect to the general scope and meaning of a statute when all its provisions are examined.’ ”

We there further noted, 256 So.2d 121:

"In Gremillion v. Louisiana Public Service Commission, 186 La. 295, 172 So. 163, we observed: ‘In the construction of statutes, absurd results should be avoided, and when the literal construction would produce such a result, the letter of the law must give way to its spirit and the statute should be construed so as to produce a reasonable result.’ See, also, In re Hibernia Bank & Trust Co., 185 La. 448, 169 So. 464; State ex rel. Womack v. Jones, 201 La. 637, 10 So.2d 213; Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237, and the authorities therein cited.”2

*886In its context, we do not believe the term “tenure . . . during good behaviour” unambiguously provides for guaranteed lifetime employment, as our original •opinion held. Section 30, in which this phrase is found, regulated only (per its ti-, tie) “Corrective and Disciplinary Action for Maintaining Standards of Service”. In context, the phrase simply means that during civil service tenure, the employee shall not be removed by disciplinary proceedings •except for cause, and the causes for disciplinary removal are then expressly set forth. Neither Section 30 or the fire and police civil service law as a whole provides that such civil service tenure shall be for life — at the least, this meaning requires construction by the courts, rather than being an unambiguous meaning of the phrase. In fact, other provisions of this fire and police civil service law note that positions may be abolished by the appointing authority (Section 28) and that employees may be laid off if a reduction of personnel becomes necessary (Section 29); provisions inconsistent with the guaranteed lifetime tenure implied by our previous construction of the phrase.

Further, to construe the “good behaviour” phrase as conferring lifetime appointments upon the firemen and policemen of municipalities of 13,000 to 250,000 produces absurd and unreasonable results. These firemen and policemen alone are conferred this unique guaranteed lifetime employment, like federal judges, removable only for cause no matter how old. Firemen and policemen of larger or smaller municipalities are subject to mandatory retirement, as are all other governmental employees of our state. Elected public officials have fixed terms; no office of our state government enjoys lifetime appointment. No reason whatsoever is advanced by which the legislature might have intended to confer upon these employees, and these employees alone, such a tenure, so unique and previously unknown to our system and philosophy of state government.

Such a consequence was never intended by our legislature. This will be seen by an examination of the statutory history, as well as by further analysis of the statutory context in which this isolated phrase (“during good behaviour”) is found in Sub-Section 30 (“Corrective and Disciplinary Action for Maintaining Standards of Service”) of Section 15.1 (“Fire and Police Civil Service; municipalities of 13,000 to 250,000”) of Article XIV of our state constitution.

*888• Article 15.1, providing for constitutional protection for fire and police civil service in municipalities of population noted, was added by amendment of our state constitution in 1952. See Act 302 of 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 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 legislative purpose of such Municipal Fire and Police Civil Service Law was simply to provide civil service regulation covering the “[1] classification of positions, [2] the appointment, [3] promotion, [4] transfer, [5] demotion, [6] reinstatement, [7] lay-off, [8] removal, [9] reemployment, and [10] 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. 33:2471-2508 (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. 33:2021-43 (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:-2221-42 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, inc-ludingtheir removal for cause, was (as of 1952) regulated by constitutional enactment.. Article XIV, Section 15. On the other-hand, their pension and retirement rights, were regulated by separate enactments.. La.R.S. 33:2101-20 (1950) regulated the retirement of New Orleans firemen, including provisions to encourage retirement aft*890er only 20 years, La.R.S. 33:2117. La.R.S. 33:2281-2304 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. 42:541-672, which even in 1952 provided for mandatory retirement at age 65, La.R.S. 42:585.4

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 any 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, 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 Orleans 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) (now Sub-Section 30 of Art. XIV, Section 15.1) simply provided for disciplinary and corrective proceedings concerning firemen and policemen; it did not contemplate lifetime tenure.

La.R.S. 33:2500 (which concerns solely disciplinary proceedings and removals for cause) contained Sub-Section A (now Section 15.1(30) (a) of Article XIV), which provides (identical to the present text): “The tenure of persons who have been regularly and permanently inducted into *892positions 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, as earlier noted, the purpose of the sub-section in question is simply to provide for disciplinary removal for cause during employment of fire and police civil service employees. The phrase “during good behaviour” did not contemplate lifetime tenure, nor that the legislature could never amend the separate and distinct retirement legislation so as to provide for a mandatory retirement age.

Among the causes for disciplinary removal, incidentally, was “the development of any defect of physical condition which precludes the employee from properly performing the duties of his position.” La. R.S. 33:2500 (13) (now Section 15.1(30) (a) (13) Article XIV). While permitting the disciplinary removal for cause of a physically unable employee, the legislators were careful to point out that preserved to the employee was any right he had to voluntarily retire for disability rather than be removed by disciplinary proceeding for cause, thus possibly losing pension rights.5 Therefore, within this same statutory (constitutional) section providing tenure during good behaviour and removal for certain specified causes, the drafters (redactors) of the provision specifically recognized that laws other than the civil service law regulated retirement.

No reason whatsoever is ascribed why La.R.S. 33:2500, never intended to regulate retirement nor provide lifetime tenure, should change in meaning when it became incorporated into the constitution verbatim 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, thus alone of all governmental employees of our state not subject to reasonable legislation providing for a mandatory retirement age.

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 *894City Civil Service, 214 La. 683, 38 So.2d 385, 388 (1949).6

See also: 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); State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949); State ex rel. Fernandez v. Feucht, 182 La. 134, 161 So. 179 (1935).

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 preretirement 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.

Applying the cited 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 disciplined, 7 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. 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 65.

Other jurisdictions have been faced with similar contentions that subsequent mandatory retirement legislation unconstitutionally or illegally curtailed civil service tenure. They 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; and that civil service tenure protection was not violated by a general nondiscriminatory and reasonable age limitation subsequently enacted, despite governing provisions that the tenured employee could be removed only for cause. Cooper-*896smith 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).

Thus, in rejecting contentions quite similar to those here made by the appellee firemen, the Supreme Court of Colorado stated the uniform authority as follows, Cooper-smith 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 set years or over any particular period of time.” 8

For the foregoing reasons, therefore, we reverse the holding of the trial court that La.R.S. 42:691 is unconstitutional, and we dismiss the demands of the petitioners that the defendant city and city officials be enjoined from enforcing it insofar as they are concerned. In accordance with the prayer of the defendants’ answer, we decree that the provisions of this enactment, La.R.S. 42:691 are applicable to the Alexandria Fire Department. The costs of these proceedings are to be paid by the plaintiffsappellees.

Reversed and dismissed.

HAMLIN, J., dissents adhering to the views expressed with original opinion, and concurring in the dissent of DIXON, J.

. 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.”

. Likewise, this court long ago rejected similar arguments that Article 13 requires our courts to apply the literal wording of a statute, no matter how obvious it is that the legislation’s intent and purpose was not to apply to the particular type-issue before the court. In holding to the contrary and that the true legislative intent should instead be sought, in the light of the entire legislative regulation of the question, Justice Martin for the court noted that the judges could not *886ignore the letter under the “pretext” of pursuing its spirit, but that “the letter may be disregarded with the honest intention of seeking its spirit. When, therefore, the letter of the law leads to an absurd conclusion, the judge is bound to recede from it, until he arrives at a reasonable conclusion.” Ardry’s Wife v. Ardry, 16 La. 264, 268 (1840).

. 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.”

. La.R.S. 33:2500(b) (1950), now Section 15.1(30) (b), Article XIV: “ * * * Nothing contained herein shall prevent any employee who is physically unable to perforin the duties of his position from exercising Ms rights of voluntary retirement under any applicable law.”

. The latter ease concerns the judicial exclusion from coverage of 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, hut was not reasonably intended to be included (the court held), in light of statutory history, context, and general principles of governmental civil service regulation.

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

. Pertinently as to tlie 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.”