Opinion
No. 2022
June 15, 1937
APPEAL AND ERROR — RESERVED QUESTIONS — STATUTORY CONSTRUCTION — CIVIL SERVICE — CONSTITUTIONAL LAW.
1. If original papers certified and briefs disclosed that questions other than constitutional questions are necessarily involved and relied on and have not been previously decided finally by district court nor waived by parties, Supreme Court lacks jurisdiction to answer reserved constitutional questions; trial judge's certificate or order reserving questions not being controlling (Rev. St. 1931, §§ 89-5001 to 89-5003). 2. Supreme Court may not in first instance on reserved questions deal with matters of statutory construction (Rev. St. 1931, §§ 89-5001 to 89-5003). 3. Question whether city's fire department, consisting of two regular full-time paid truck drivers and one relief truck driver and other members who engaged in their own occupations and answered fire calls when available and received only nominal compensation quarterly, constituted "paid fire department" within statute so as to create civil rights on behalf of truck drivers, did not involve constitutional problem, but involved mixed question of fact and statutory construction which could not be decided by Supreme Court in first instance on reserved questions (Rev. St. 1931, §§ 89-5001 to 89-5003; Laws 1933, c. 49). 4. The question of effect of city officials' failure to appoint and confirm fire department's civil service commission on operation of civil service law in city, as it concerned discharged fire department truck driver, was not a constitutional question which Supreme Court could determine in first instance on reserved questions (Rev. St. 1931, §§ 89-5001 to 89-5003; Laws 1933, c. 49).
RESERVED CONSTITUTIONAL QUESTIONS from the District Court of Sweetwater County; V.J. TIDBALL, Judge.
For the plaintiff there was a brief and oral argument by W.W. Tipton of Laramie.
The first question is whether Chapter 49, Section 2, Laws 1933 violates Article 13, Section 1 of the Constitution, restricting powers of municipal corporations. The section of the Constitution provides for the classification of municipal corporations. Section 22-1401, R.S. provides for the general incorporation of towns. Sec. 22-301, R.S. provides that cities having more than four thousand inhabitants shall be known as cities of the first class. The two foregoing questions are the only ones created thus far. McFarland v. Cheyenne, 48 Wyo. 86. There were, of course, several towns existing under a special charter upon the adoption of the constitution. May a civil service commission for firemen be set up in cities of more than four thousand inhabitants, excluded from other towns of the same class? The question seems to have been settled in McFarland v. Cheyenne, supra. The principle arose in the case of State v. Sheldon, 29 Wyo. 233, involving an act providing for commission government. See also Murname v. St. Louis, 27 S.W. 711 and Owen v. Baer, 154 Mo. 434, 55 S.W. 644. The statute (Chapter 49, Laws 1933) does not apply to incorporated towns, but only to first class cities and those under special charter, and is therefore constitutional. The words "town" and "city" used as they are interchangeably, may have caused some confusion. The second question is whether a town of less than four thousand inhabitants, maintaining a paid fire department, may be deprived of the advantage of a fire department civil service commission, since the Constitution, Article 1, Section 34 ordains that all laws of a general nature shall have a uniform operation, and Article 3, Section 27, prohibits the passage of local or special laws on certain subjects. The point was raised and decided in State v. Sheldon, supra. See also McGarvey v. Swan, 17 Wyo. 120 and State v. Board of Trustees (Wis.) 98 N.W. 954. The next question is whether Section 3, Chapter 49, Laws 1933, providing that fire department civil service commissions shall serve without compensation, violates Article 14, Section 1 of the Constitution. The point seems to have been decided in State v. Sheldon, supra. The fourth question is whether Section 11 of Chapter 49, Laws 1933, violates Article 3, Section 24 of the Constitution, prohibiting the title of an act to contain more than one subject. The outstanding decision on the subject is in Re 4th Judicial District, 4 Wyo. 133, decided in 1893. The point was raised in the case of Commissioners v. Stone, 7 Wyo. 280, also in Madden v. Wilde, 48 Wyo. 372. The rule announced in this court seems to be that so long as the title is germane to the general subject of the legislation, in a way that will apprise one of the nature of the general subject, it is sufficient. We think the title as set forth in Chapter 49 of the Laws of 1933 meets this requirement. The fifth question is whether Section 11 of Chapter 49, Laws 1933, extending the provisions of the Firemen's Civil Service Act to firemen in the employment of the cities at the time of the passage of the Act, violates Article 3, Section 32 of the Constitution, which prohibits the extension of terms, and increase or decrease in salaries of an officer, after his election or appointment. The point is not a new one, it having been raised in almost every state where a civil service law has been enacted. See Minton v. Gibson (Ky.) 7 S.W.2d 825. In Wyoming, firemen have no definite term of office or employment. We think a mere reading of Article 3, Sec. 32 shows that it was not intended to apply to persons having no term of office. King v. Johnson (Mo.) 27 S.W. 339; State v. Jennings (Ohio) 49 N.E. 404; People v. Loeffler (Ill.) 51 N.E. 785. The sixth question is whether Section 11, Chapter 49, Laws 1933 violates Article 1, Section 2 of the Constitution. After reading the constitutional provisions, it is difficult to understand why this question was submitted at all. We are unable to conceive wherein it is pertinent to the issues in this case. The seventh question is whether Section 11, Chapter 49, Laws 1933 violates Article 14, Section 1 of the Constitution. Public employment is not property and it is error to assume that every citizen has a right to hold office. It is only the citizen having the proper qualifications for an office or position who has the right to hold such office, and the Act applies to all citizens alike. People v. Kipley (Ill.) 49 N.E. 229; State v. Ross (Wyo.) 228 P. 636. The eighth question is whether Section 11, Chapter 49, Laws 1933 is severable so that if held invalid, it may not vitiate the remaining sections of the Chapter. We submit that the section is severable from other portions of the Act. State v. Sheldon, supra. The ninth question is whether Chapter 49, Laws 1933 is a special or local law, in violation of Section 27 of Article 3 of the Constitution. This court has held that if a general law has uniform operation and applies to all persons in a class or under like circumstances and condition, then it is not local or special legislation. State v. Sherman, 18 Wyo. 169; State v. Ross, 228 P. 636. All reasonable doubts are to be resolved in favor of the validity of the statute. State v. Sheldon, supra. McGarvey v. Swan (Wyo.) 96 P. 697.
For the defendants, there was a brief and oral argument by W.W. Magagna and Lewis H. Brown of Rock Springs.
The nature of civil service laws is reviewed in 5 R.C.L. 608, also 46 C.J. 954. Competitive examinations are the prime elements of such laws. Chapter 49, Laws 1933 makes two classifications of cities and towns coming within its provisions: (a) Cities and towns in the State maintaining a paid fire department. (b) Cities and towns having a population of over 4,000 inhabitants. The evident intent of the legislature was to make the law applicable to full time paid fire departments, and not to part time departments. There are three types of paid fire departments in Wyoming: (a) A full time paid department. (b) A department for one or more full time paid truck drivers and a number of what might be called "volunteer firemen," who are really engaged in other occupations for a living. (c) A department wherein all the members are volunteer firemen and receive some compensation if they go to a fire. If the law was intended to cover only full time and paid fire department members, the City of Rock Springs would not come under the provisions of the law at all, although it has more than 4,000 inhabitants. The title of the Act only refers to cities having a population of over 4,000. As to the constitutionality of the Act in general, we cite 5 R.C.L. pp. 609-613. Civil Service Acts attempting to favor honorably discharged soldiers and sailors, without regard to qualifications are generally held unconstitutional. 19 R.C.L. 755; 43 C.J. 609; 1 Dillon on Municipal Corporations, 5th Ed. Sec. 408; 16 A.L.R. 409. If the statute merely gives a preference among persons equally qualified, it is constitutional. Cook v. Mason (Calif.) 283 P. 891. It seems to be contended by plaintiff that Section 11 of the Act is mandatory and attempts to discriminate in favor of persons occupying positions at the time the law was enacted, regardless of the length of their service, experience, ability, efficiency or character. Phillips v. De Las Casas (Mass.) 102 N.E. 717. This however served to emphasize the invalidity of the provisions of Section 11 of the Act, and seems to establish the competency of such employees by legislative fiat. In order to comply with Article 1, Section 2, and Article 3, Section 27, classifications must meet two requirements: (1) The legislation must apply alike to all persons within the designated classes; and (2) reasonable ground must exist for making a distinction between those who fall within the class and those who do not. While some authorities sustain civil service statutes, granting privileges to honorably discharged soldiers and sailors (King v. Emmons, 191 N.E. 881) the doctrine is not supported by the weight of authority. However that point has no application to a statute which attempts to require cities to retain all employees in the service at the time the act was passed. The controlling purpose of the act was to secure competent and capable employees and to accomplish that result examinations and gradings are required. Section 9 of the Act recognizes the period of service in a position for less than six months to be no evidence of the fitness or qualifications for the position. The section also provides that even though a person did pass the examination and obtained the required grade or standing, nevertheless he is required to serve a probation period of six months before he might be permanently employed. The Milwaukee Act construed in County v. Buech, 177 N.W. 781 provides that long-continued service is evidence of qualification and fitness, without, however, citing authority to sustain the court's decision. The title of Chapter 49, Laws 1933 is misleading. The title to a bill is of great importance to a member of the legislature, in giving him an idea as to what the bill contains. The general law on this subject is set forth at 59 C.J. pp. 811, et seq. It is unlikely that a civil service law based on merit and fitness ascertained by competitive examination, would be prepared and enacted with a straight provision in the bill giving everyone a job who happened to be employed at the time of the adoption of the Act, regardless of merit, fitness, qualifications, or otherwise. It is clear that Section 11 of this Act was "coiled up in the folds of this bill." We think the title of this bill is in violation of the Constitution. Section 3 of the Act provides for the appointment of commissioners without compensation. While it is held in State v. Sheldon, 29 Wyo. 233, that an office could be created without providing compensation for the occupant thereof, yet that case does not go to the extent of holding that the city may be compelled by mandamus to appoint or employ anyone, and at the same time prohibit the payment of compensation. We submit that Chapter 49, Laws 1933 has no application to the City of Rock Springs whatsoever, and that the classification of a paid fire department is not a proper and appropriate constitutional classification; that the provisions of Section 11 are unconstitutional and void; that the title of this act is vitally defective, and that the provisions requiring the appointment of commissioners who shall serve without compensation is arbitrary and unenforceable.
This case is submitted to this court upon certain reserved constitutional questions declared to be important and difficult and as arising upon the record certified by the Clerk of the District Court of Sweetwater County. The procedure invoked is detailed in Sections 89-5001 to 89-5003, inclusive, W.R.S., 1931. The record so certified consists of plaintiff's petition, and demurrer of the defendants thereto, and the reserved questions.
The substance of the pleading to be considered is as follows: Plaintiff alleges as a cause of action against the defendants named that the defendant City of Rock Springs is a municipal corporation, a city of the first class, with a population of more than 4,000 inhabitants, located in Sweetwater County, Wyoming; that the other defendants are respectively the Mayor, the Chief of the Fire Department and the Councilmen of said City; that the plaintiff since June 1, 1926, during the year 1933, and at the time of the adoption of Chapter 49 of the Session Laws of Wyoming, 1933, was "an employee of the Paid Fire Department regularly recognized and maintained by said City;" that since January 1, 1937, plaintiff had thus been employed as a teamster and truck driver, at a salary of $150.00 per month, having been so employed on January 8, 1936; that on the date last mentioned the defendants, other than the City of Rock Springs, unlawfully removed and discharged the plaintiff, in violation of the latter's rights under the aforesaid Chapter 49; that since that date they have prevented the plaintiff from performing duties as an employee of said Fire Department and from receiving his monthly salary, though he has been at all times ready to perform such duties.
It is also alleged that on September 8, 1936, the plaintiff filed with said City his claim for wages from January 9, 1936, to August 31 of that year, which the Mayor and City Council of said City have disallowed; that on September 8, 1936, plaintiff filed with said Mayor and City Council his demand for reinstatement as a member of said Fire Department, but that this demand was disallowed, the defendants claiming they had a legal right to remove the plaintiff from his employment as aforesaid and that they are not bound by the provisions of Chapter 49, above mentioned. It is then averred that plaintiff's removal was made in violation of the provisions of said Chapter 49 for the reasons that no Fire Department Civil Service Commission was ever attempted, or in fact established in said City; that no written notice and specifications for the plaintiff's discharge were given him or filed with such Commission and that no hearing or investigation was held by such Commision.
The plaintiff, it is further alleged, is a person interested in Chapter 49 aforesaid, whose rights are affected thereby and who desires to have its meaning and validity determined as provided by Sections 89-2401 to 89-2416, inclusive, W.R.S., 1931, the Law of this State known as the Uniform Declaratory Judgment Act. It is finally pleaded that the court having declared the construction and meaning of said Chapter 49, the plaintiff desires the court to enter such judgment as the facts require, giving the plaintiff just and equitable relief, including a judgment against the defendants, or any of them, for his wages and salary, in such amount as may be found to be due. The prayer of the petition is for the relief thus sought, including an injunction against the defendants restraining them from removing him from the Fire Department of the City aforesaid.
The defendants demurred to this petition on the ground that it "does not state facts sufficient to constitute a cause of action against these defendants, or any of them."
The district court of Sweetwater County heard the arguments of counsel upon the issues thus raised, reserved its ruling thereon and ordered some nine constitutional questions relating to Chapter 49 aforesaid to be certified to this court. It will be unnecessary to state them at this time.
In State ex rel. Lee, Attorney General, v. Continental Oil Co., 48 Wyo. 152, 43 P.2d 686, earlier decisions in this jurisdiction were reviewed, and it was held that if the original papers certified and the parties' briefs thereon disclosed that other than constitutional questions were necessarily involved, are called upon and have not been previously decided finally by the district court and that such questions have not been waived by the parties, this court lacks jurisdiction to answer the constitutional questions reserved upon such record, the trial judge's certificate or order reserving them not being regarded as controlling the matter.
In School District No. 14, Fremont County, v. School District No. 21, Fremont County, 48 Wyo. 511, 49 P.2d 682, it was also held that this court may not in the first instance on reserved questions deal with matters of statutory construction. See also McFarland v. City of Cheyenne, 48 Wyo. 86, 42 P.2d 413.
Defendants on the argument of this case and in their brief have earnestly contended that the City of Rock Springs does not have a "paid fire department" within the proper construction of the language of Chapter 49, supra, when considered in its entirety. They say that there are in the cities and towns of this state three types of paid fire departments: (1) A regular full time paid fire department, where the members thereof are solely engaged in their occupation of firemen and receive regular monthly salaries; (2) A type of fire department such as is claimed to exist in Rock Springs, consisting of two regular full time paid truck drivers and one relief truck driver, and all the other members of the fire department of said City, including the fire chief, being what may be called "volunteer firemen", although that word may not be precisely appropriate in describing them; that all the members of the Rock Springs Fire Department, with the exception of the truck drivers, above mentioned, are each and all engaged in their own occupations and answer a fire call when an alarm is sounded, if they happen to be in the city, are available and are able to go to the fire; that in so far as their daily occupations are concerned, these are apart from their duties as firemen, and one may be a mechanic, one employed by the railroad and another may be a carpenter or merchant's clerk; that these volunteer or part time firemen are paid a nominal compensation quarterly; (3) The type of fire department wherein all the members thereof are volunteer firemen and simply go to a fire when an alarm is sounded, although these men likewise receive some compensation, and in that sense they are paid firemen.
Cases suggested as dealing with the question raised are Continental Hose Co. No. 1 v. City of Fargo, 17 N.D. 5, 114 N.W. 834; Seavert v. Cooper et al., 187 Iowa 1109, 175 N.W. 19.
Chapter 49 of the Session Laws of Wyoming, 1933, has twenty sections, eighteen of which, when surveyed together and speaking generally, deal with the establishment and maintenance of a Fire Department Civil Service Commission in each of the incorporated cities and towns in the State of Wyoming "maintaining a paid fire department and having a population of over four thousand, according to the latest United States census". The Act provides, among other things, for the appointment by the mayor and confirmation by the city's legislative body of three commissioners, and fixes their terms of office, but expressly provides they shall serve without compensation. It requires the city's legislative body to furnish said commissioners with proper office accommodations and supplies. It directs the Commission to classify employment in the fire department into classes or schedules, based upon the nature of the duties to be performed, and to examine all applicants for eligible ratings in such classes as to their qualifications; only persons whose proficiency in rating is at least seventy-five per cent of complete can be certified by the Commission to the Mayor and city legislative body, who are permitted to employ only such persons. These employees so chosen, including "all persons at the time of the adoption of this Act occupying positions affected by the provisions of this Act" can be discharged only upon written notice and specifications filed with the Commission and opportunity given the employee to answer the charge or charges, a hearing or investigation had by the Commission and a determination by it whether the reason for the discharge is sufficient.
This outline of some of the more important provisions of the Act makes it plain that the law is designed to supply a rather elaborate scheme of Civil Service government for the fire departments of the cities effected.
It is apparent we think, that the question above suggested and argued on behalf of the defendants involves no constitutional problem, but is a mixed question of fact and statutory construction. If the law should be construed as not applying to such a fire department as the City of Rock Springs in fact possesses, then there will be no need of solving any constitutional questions in disposing of this case. Under the ruling of this court, cited above, we have no jurisdiction to decide any alleged constitutional questions until all other questions are disposed of in the pending litigation.
It may perhaps be noted that it is admitted that the Mayor and Council of the City of Rock Springs have never appointed and confirmed such a Commission. What the effect of their failure so to do may be upon the actual operation of the law in the City of Rock Springs as it concerns the plaintiff in this case is, of course, not a constitutional question, yet it would seem to arise upon this record, as do other questions, which need not now be mentioned.
It must be clear, therefore, that we cannot at this time answer the certified questions propounded, and the cause must be remanded to the district court of Sweetwater County for further proceedings therein, and an order to that effect will be entered.
Case remanded — Questions unanswered.
BLUME, CH. J., and KIMBALL, J., concur.