Opinion
Rehearing Denied April 3, 1973.
Max P. Zall, City Atty., Robert Dowler, Asst. City Atty., Denver, for defendants-appellants, The Civil Service Commission of the City and County of Denver; Ted Bach, Arthur S. Bowman, Cecil W. Howard, Individually and as members thereof; George A. Canjar, Manager of Safety and Excise of the City and County of Denver; George L. Seaton, Chief of Police of the City and County of Denver; The City and County of Denver.
Sherman & Sherman, P.C., Edward H. Sherman, Denver, for plaintiffs-appellees.
Geer & Goodwin, Robert E. Goodwin, Denver, for defendants-appellants, Edward J. O'Dea, Fred Laurita, Gerald R. Gardner, Warren K. Beard and Michael E. Dowd.
SILVERSTEIN, Chief Judge.
This action was commenced in the district court by five officers in the Denver police department to review an order of the Civil Service Commission of the City and County of Denver. The controversy involves the construction of Article XII, Section 15, of the Colorado Constitution, known as the 'Veterans Preference Amendment,' which was adopted November 3, 1970, and became effective July 1, 1971, and what application, if any, that amendment has to a police department promotional examination given on September 20, 1969.
Prior to the adoption of the above amendment, civil service commission examinations were subject to the provisions of Colo.Const. Art, XII, Sec. 14, which provided that in every examination conducted by any civil service commission.
'Five points shall be added to the grades of candidates receiving a passing grade who served in the armed forces of the United States in times of war and who were honorably discharged therefrom, . . .. Eligibility lists shall be kept and maintained for reasonable periods of all who have made passing grades in such examinations and the candidates placed thereon in the order of the grades received by them, including any points added as herein provided. The persons on said lists . . . shall be appointed or promoted in accordance with their order thereon.'
By the November 3, 1970, amendment the above section was repealed and Colo.Const. Art, XII, Sec. 15, was substituted in its place. As pertinent here, Sec. 15 provides that on civil service examinations, 'Five points shall be added to the passing grade of each candidate on each such examination, except any promotional examination, who is separated under honorable conditions . . ..' from the armed forces of the United States, having served under specified circumstances. Sec. 15 also provides that it shall be in full force and effect on and after July 1, 1971, and, further states:
'This section shall apply to all public employment examinations, except promotional examinations, conducted on or after such date, . . ..'
This controversy arose out of the following stipulated facts. On September 20, 1969, an examination for promotion to sergeant was duly given by the Civil Service Commission, following which a list was published setting forth the scores of all applicants. Veterans preference points were included in the scores and the list was duly approved. This eligibility list was extended on November 18, 1970, to and including November 18, 1971, or until a new examination, if any, was given prior to that date. This extension was proper under the applicable law, rules and regulations.
On July 6, 1971, the Manager of Safety made a requisition for certification by the Civil Service Commission from the eligibility list for five positions for sergeant in the Police Department. The five plaintiffs, all of whom had veterans preference points included in their grade scores, had the highest grade ranks and were appointed sergeants as of August 1, 1971. E. J. O'Dea, one of the defendants herein, and who did not have any veterans preference points included in his grade, protested the appointment on the ground that the plaintiffs were no longer entitled to the preference points after July 1, 1971, since the amendment, Section 15, had then gone into effect. The Commission held two hearings on the matter and determined that the preference points should no longer be included in the grade scores and, on September 15, 1971, demoted the five plaintiffs and appointed O'Dea and four others as sergeants in their stead.
Plaintiffs then brought this action against the Civil Service Commission and its members, the Manager of Safety and Excise, the Chief of Police, and the five who were appointed sergeants. Later the action was converted into a class action to include all officers on the eligibility list. Plaintiffs contended that the amendment, Section 15, did not have any retroactive effect and that the eligibility list based on the scores on tests given prior to July 1, 1971, could not be altered. After a trial to the court, judgment was entered in favor of plaintiffs and the Manager of Safety and Excise and the Chief of Police were ordered to remove the defendant sergeants from office and to reinstate the plaintiffs. The defendants appeal from that order. We affirm.
Defendants contend that plaintiffs have no vested rights in the preference points. They rely on Perry v. O'Farrell, 120 Colo. 561, 212 P.2d 848, which held that an eligibility list created only an expectancy and that no rights became vested until appointment to the rank desired. However, that case would be pertinent here only if Section 15 has retroactive effect so as to control examinations conducted prior to July 1, 1971. We hold that it does not.
It is a fundamental rule of constitutional law that a constitutional amendment, like a statute, operates only prospectively unless the words employed clearly indicate that it was intended to have retroactive effect. Perry v. O'Farrell, 120 Colo. 561, 212 P.2d 848; Strickler v. City of Colorado Springs, 16 Colo. 61, 26 P. 313; See also California Co. v. State, 141 Colo. 288, 348 P.2d 382, dismissed, 364 U.S. 285, 81 S.Ct. 42, 5 L.Ed.2d 37.
Where the words and phrases of a constitutional amendment are plain and unambiguous, courts may not resort to forced or strained interpretations but must enforce such language as written. Colorado State Civil Service Employees Ass'n v. Love, 167 Colo. 436, 448 P.2d 624. The current Article XII, Section 15, states specifically that it applies to examinations conducted after July 1, 1971, its effective date. It does not affect the eligibility list which was based on the examination given prior to that date. The language employed plainly states that its operation is to be prospective.
The judgment is affirmed.
DWYER and PIERCE, JJ., concur.