McAdams v. Barbieri

Daly, J.

(dissenting). This amendment should be examined with great strictness, since its purpose was to undermine the civil service by freezing into permanent positions almost 300 persons who failed to meet the qualifications which had been demanded of those already within the system. In Howe v. Civil Service Commission, 128 Conn. 35, 38, 20 A.2d 397, we quoted with approval the following from Matter of Sheridan v. Kern, 255 App. Div. 57, 63, 5 N.Y.S.2d 336: “Any method which results in improperly placing in permanent positions those who obtain temporary employment is a reversion to the [properly] condemned spoils system and is destructive of much that has been accomplished in the way of civil ¡service reform.” Before the amendment became *423effective on February 16, 1950, a provision of the New Haven charter required that all appointments be made in conformance with the rules prescribed by the civil service board. It was also provided that every appointment made in violation of that provision “shall be null and void,” and that any violation of any of the charter provisions relating to civil service and appointments thereunder would constitute a misdemeanor punishable by a fine not exceeding $500. New Haven Charter, §§ 270, 271, 272 (1928). These charter provisions had been in effect since 1899. 13 Spec. Laws 423, §§ 119,120,121. Buies were prescribed by the civil service board, and the plaintiff was, admittedly, never appointed to any position in conformance with them. The amendment contains provisions, substantially identical with the previous ones, making appointments in violation of it null and void and punishable as a misdemeanor. New Haven Bd. of Aldm. Jour., pp. 482, 483 (1949); New Haven Charter, §<§ 204, 205, 206 (1952).

As stated in the opinion of the majority, the plaintiff alleged in his complaint, and the defendant admitted in his answer, that in March, 1946, the plaintiff “was hired as a temporary employee in the Department of Public Works . . . and was assigned to the position of Clerk in said Department, in the Supply House.” The plaintiff did not allege that he was appointed to any position. He did not allege, and the trial court did not find, that at the time he “was hired as a temporary employee” there was a vacancy in the position of clerk in the supply house. Moreover, the court found that it does not appear that at the time of the plaintiff’s hiring there was a vacancy of an emergency character in a position in the competitive class and it was not practicable either to secure a person by certifica*424tion from an eligible list or to conduct an examination, in the absence of such a list, to meet the emergency. As there was no vacancy in the position of clerk in the supply house at the time the plaintiff commenced work, and as his employment was merely temporary, the temporary appointment could not ripen into a permanent civil service position. State ex rel. Curran v. Golden, 116 Conn. 302, 306, 164 A. 640.

The majority concede that the plaintiff was not “holding” a “permanent” position, “in the sense that he was not a permanent appointee because he had not qualified under the previously existing civil service regulations.” In a civilized community, “holding a position” means lawfully holding it. People ex rel. Hannan v. Board of Health, 153 N.Y. 513, 518, 47 N.E. 785. The plaintiff was wrongfully and unlawfully in the employ of the city of New Haven during all of his employment and at the time the amendment became effective. Even if the words of the amendment were such that, literally read, it would include one wrongfully retaining a position, it would not be reasonable so to construe it. Whatever may have been the purpose of the first sentence of § 9 of the amendment, it certainly was not to perpetuate wrongful tenure of a position. People ex rel. v. Chew, 68 Colo. 158, 159, 187 P. 513.

The charter of New Haven is a “public act.” New Haven Taxpayers Research Council, Inc. v. DePalma, 137 Conn. 331, 337, 77 A.2d 338. It is unreasonable to declare that the expressed intention of the legislative body in passing the amendment was to include one who was in the employ of the city in direct violation of the civil service provisions of the charter and without any right to his employment, thereby working public mischief in undermining civil serv*425ice. A statute should receive a sensible construction, in conformity to reason and justice, unless the language used is so clear as to prevent it. It is to be presumed that the legislative body did not intend to work public mischief. People ex rel. Hannan v. Board of Health, 153 N.Y. 513, 518, 47 N.E. 785. When one construction leads to public mischief which another interpretation will avoid, the latter is to be favored unless the terms of the law absolutely forbid. Rowland v. Hayes, 124 Conn. 129, 139, 198 A. 337; Bridgeman v. Derby, 104 Conn. 1, 8, 132 A. 25. It is not and cannot be claimed that the terms of the amendment absolutely forbid a construction which will avoid public mischief.

In the opinion of the majority, in support of the construction placed upon the first sentence of § 9 of the amendment, it is stated that the definition of the words “permanent position” in § 309 of the General Statutes aptly describes the plaintiff’s position and therefore the trial court’s conclusion that the place of employment to which the plaintiff was assigned in 1946 was a permanent position cannot be successfully challenged as illogical or illegal. Section 309 provides: “The following terms, when used in this chapter, shall have the following meanings unless the context shall otherwise indicate: (1) ‘State service’ shall mean any office or position of trust or employment in the service of the state, but not of local governmental subdivisions thereof, for which service compensation is paid;... (6) ‘permanent position’ shall mean any position in the state service which requires or which is expected to require the services of an incumbent. . . for a period of more than six months; . . . .” It is clear that the definition of “permanent position” in § 309 has no conceivable application here and can furnish no sup*426port for determining that the plaintiff was, in 1946 or at the time the amendment became effective, holding a permanent position in the employ of the city of New Haven, a local governmental subdivision of the state.

The opinion of the majority completely ignores the well-recognized rules of construction stated above and bases the holding upon the reasoning that if the words “holding permanent positions,” in the first sentence of § 9 of the amendment, are construed to mean “lawfully holding permanent positions,” that sentence and the one following it would, in effect, have the same meaning, and consequently one of them would be superfluous. It is true that the enactment must be examined as a whole and in such a manner as to reconcile all of its provisions so far as possible. Hutchison v. Board of Zoning Appeals, 140 Conn. 381, 385, 100 A.2d 839. Nevertheless, where, as in the instant case, there are compelling reasons why the principle cannot be followed, the sentence in question should be treated as superfluous, void or insignificant. Niedzwicki v. Pequonnock Foundry, 133 Conn. 78, 82, 48 A.2d 369. Here the compelling reasons why the principle cannot be followed, and for treating the first sentence of § 9 of the amendment as superfluous, void or insignificant, are: (1) The temporary employment of the plaintiff in direct violation of the law and regulations could not ripen into a permanent civil service position. (2) The words “holding permanent positions” are not ambiguous, since they can only mean “lawfully holding permanent positions.” (3) To hold otherwise works public mischief.

In this opinion O’Stjllivax, J., concurred.