CITIES AND TOWNS ‑- COUNCIL ‑- CIVIL SERVICE COMMISSION ‑- REQUIREMENT OF RESIDENCE FOR FIREMEN AND POLICEMEN ‑- ESTABLISHMENT OF MANDATORY RETIREMENT AGE FOR PERSON NOT IN RETIREMENT SYSTEM

CITIES AND TOWNS ‑- COUNCIL ‑- CIVIL SERVICE COMMISSION ‑- REQUIREMENT OF RESIDENCE FOR FIREMEN AND POLICEMEN ‑- ESTABLISHMENT OF MANDATORY RETIREMENT AGE FOR PERSON NOT IN RETIREMENT SYSTEM.

1. Chapter 95, Laws of 1963, does not authorize a city by ordinance, or its civil service commission by rule, to require a fireman or policeman to maintain residence within the city as a condition of employment.

2. A city by ordinance or the civil service commission by rule may, with qualifications, set a mandatory retirement age for employees having civil service status but who are not members of any retirement system at the time said ordinance or rule, if enacted or adopted, becomes effective.

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                                                                    July 17, 1963

Honorable Perry B. Woodall
State Senator, 15th District
P.O. Box 507
Toppenish, Washington

                                                                                                                Cite as:  AGO 63-64 No. 36

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on two questions which we paraphrase as follows:

            (1) Does chapter 95, Laws of 1963, authorize a city by ordinance, or its civil service commission by rule, to require a fireman or policeman having civil service status under chapters 41.08 or 41.12 RCW to maintain residence within the city as a condition to continued employment?

            (2) Can a city by ordinance, or civil service commission by rule, set a mandatory retirement age for employees having civil service status but who are not members of any retirement system at the time such ordinance or rule, if enacted, becomes effective?

            We answer your first question in the negative and your second as set forth in the analysis.

                                                                     ANALYSIS

            Question 1.

             [[Orig. Op. Page 2]]

            As your letter points out, RCW 35.21.200 prohibits a city or town from imposing upon its civil service employees a requirement that they maintain residence within the corporate limits of the city as a condition to continued employment.  That statute provides, in pertinent part, as follows:

            "Any city or town may by ordinance of its legislative authority determine whether there shall be any residential qualifications for any or all of its appointive officials or for preference in employment of its employees,but residence of an employee outside the limits of such city or town shall not be grounds for discharge of any regularly appointed civil service employee otherwise qualified: . . ."  (Emphasis supplied.)

            In the case ofMosebar v. Moore, 41 Wn.2d 216, 248 P.2d 385 (1952), our supreme court, construing that portion of RCW 35.21.200 emphasized in the quote above, said:

            "For the first time a clear distinction is made between residence as a condition precedent to employment and as a requisite for continued employment.  For the first time, by statute, nonresidence became a prohibited ground for discharge of a civil service employee.

            "The . . . act is unambiguous.  We think it is clear in its intent to protect civil service employees, as a class, from the operation of any city charter or ordinance requiring continued residence, as a requisite of continued employment.  It authorizes a city to enact residence qualifications by any ordinance which does not conflict with its charter; but it forbids the city to discharge a civil service employee, otherwise qualified, upon the sole ground that he has moved beyond the corporate limits."  (pp. 219-220.)

            During its last session the legislature enacted chapter 95, Laws of 1963, which became effective on June 13 of this year.  Sections 1 and 2 of that act amend, respectively, RCW 41.08.070 and RCW 41.12.070.  These sections prescribe various qualifications of applicants for  [[Orig. Op. Page 3]] civil service positions in the fire and police departments of cities and towns covered by chapters 41.08 and 41.12 RCW.  Prior to amendment, RCW 41.08.070 and RCW 41.12.070 were identical in language and provided as follows:

            "Anapplicant for a position of any kind under civil service, must be a citizen of the United States of America and an elector of the county in which he resides, who can read and write the English language, and must have been a resident of said city for at least one year.

            "Anapplicant for a position of any kind under civil service must be of an age suitable for the position applied for, in ordinary good health, of good moral character and of temperate and industrious habits; these facts to be ascertained in such manner as the commission may deem advisable."  (Emphasis supplied.)

            Sections 1 and 2 of chapter 95, Laws of 1963, amending RCW 41.08.070 and RCW 41.12.070, are also identical in language.  The only change made was a deletion of the requirement that the applicant be an elector of the county, and a resident of his city for at least one year.  Instead, the amendatory laws provide:

            ". . . The [civil service] commission may prescribe residence requirements foranyone appointed under this act."  (Emphasis supplied.)

            Your question then is whether this 1963 act has repealed RCW 35.21.200 to the extent of authorizing a city, either through its legislative body or civil service commission, to compel a fireman or policeman having civil service status under chapters 41.08 or 41.12 RCW to maintain residence within the city or forfeit his right to continued employment.  Since there has been no express repeal of RCW 35.21.200, an affirmative answer must rest upon a determination that the provision of the 1963 act quoted above has effected a repeal by implication.

            It is axiomatic that such repeals are not favored and will not be indulged in by the courts unless necessary to carry out the manifest intention of the legislature, or unless there would exist without an implied repeal a discordance in the law that could not otherwise be prevented.  Buell v. McGee, 9 Wn.2d 84, 113 P.2d 522 (1941); Rothweiler v. Winton Motor Car Co., 92 Wash. 215, 158 Pac. 737 (1916);Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092 (1913).  InLindsey  [[Orig. Op. Page 4]] v. Superior Court, 33 Wn.2d 94, 99, 204 P.2d 482 (1949), the rule was stated as follows:

            "Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier one unless the later act covers the entire subject matter of the earlier act, is complete in itself, and is evidently intended to supersede the prior act, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both be given effect.  [Cases cited.]"

            And further,

            "It is universally accepted that inconsistency between statutes upon a given subject is never presumed, but such interpretation or construction should be adopted as will harmonize all acts upon the subject, if reasonably possible . . ." (p. 102.)

            It seems to us evident that the provisions of §§ 1 and 2, chapter 95, Laws of 1963,supra, authorizing the civil service commission to prescribe residence requirements for civil service appointees can be harmonized with the prohibition contained in RCW 35.21.200, supra, against discharge of a civil service employee because of ". . . residence of [such] . . . employee outside the limits of such city . . ."  The two statutes may be harmonized by simply construing §§ 1 and 2, chapter 95, Laws of 1963, as meaning that a civil service commission may establish residence requirements, generally, for civil service appointees under chapters 41.08 and 41.12 RCW, but that the commission may not by rule or regulation establish a specific requirement of continued residence within the city limits.

            Such an interpretation, of course, also gives effect to the general rule that an agency regulation cannot be said to amend a duly enacted act of the legislature.  See, AGO 61-62 No. 138 [[to Superintendent of Public Instruction on May 22, 1962]], and cases cited therein.

            Accordingly, we answer your first question, above stated, in the negative.  It is therefore unnecessary to consider your subsidiary questions of whether a civil service commission regulation requiring continued residence in the city as a condition to retention of position could be applied to a civil service appointee who was appointed prior to the effective date of the above noted 1963 amendatory statutes.

             [[Orig. Op. Page 5]]

            Question 2.

            While there is some conflict of authority, the majority and in our opinion the better reasoned cases, support the view that in the absence of express statutory prohibition, a municipality has the power to prescribe reasonable and nondiscriminatory age limits for the compulsory retirement of its officers and employees.  Humbeutel v. City of New York, 125 N.Y.S.2d 198 (1953), aff'd. 283 App. Div. 1011, 131 N.Y.S.2d 445 (1954); Boyle v. City of Philadelphia, 338 Pa. 129, 12 A.2d 43 (1940).  InBoyle v. City of Philadelphia, supra, civil service employees of the fire and police bureaus of the City of Philadelphia sought to enjoin the enforcement of a city ordinance providing for the compulsory retirement of policemen and firemen at the age of 65.  In denying the injunction the court said:

            "To ask the question is to answer it.  Of course, in the absence of express statutory prohibition, the power is inherent in a municipality to prescribe reasonable and nondiscriminatory superannuation classifications, similar to those here set up, with respect to its firemen and policemen.  Experience has demonstrated that generally one who has attained the age of sixty or sixty-five 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 those 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 personal 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 disregarded 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.  Whether the age at which the average man's physical and mental conditions show him unfit for strenuous and hazardous work is fifty, sixty, or seventy, is a question determined by the exercise of sound discretion based on experience, and that is exactly what the city council did in the ordinance before us.  That the action taken represents a wise public policy cannot be doubted.  There is no discrimination in the classes embraced in the ordinance, and no political, religious or personal motives are behind its enactment."

             [[Orig. Op. Page 6]]

            In answer to the plaintiffs' contention that the ordinance contravened a state civil service statute prohibiting their removal except for cause, upon written charges and after a public hearing, it was held:

            "We do not agree with appellants that this plan is forbidden by legislative mandate.  Demotion or removal based upon a general, nondiscriminatory age limitation, does not contravene section 18, Article XIX of the Act of June 25, 1919, P.L. 581, 53 P.S. § 3338, 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 behavior, and to protect employees against improper personal attack.  The protection holds during service, but does not guarantee duration of service over any particular period of time.

            ". . .

            "Where a bona fide attempt is made by a municipality to improve its police and fire service, and all employees of the same class are treated alike, it would seem that there can be no doubt that the municipality has the right to adopt a plan of demotion and retirement based upon age limitations.  To say that for economy a police force can be reduced, but for efficiency men too old for real service cannot be retired, does not make sense.  This is not the case of an individual, it is the case of all patrolmen, hosemen, and laddermen of Philadelphia.  Our decision rests upon the particular facts here presented, involving a general, nondiscriminatory age classification.  It does not open the door to removals for political or partisan reasons, made under the pretense of economy or efficiency."  (Emphasis supplied.) (pp. 44-45.)

            InHumbeutel v. City of New York, supra, the plaintiff, a civil service employee of the New York City police department, attacked a local city law providing for the compulsory retirement of policemen at age 63.  The court held that the local law did not violate the provisions of a state civil service statute preventing the removal of city employees covered by civil service except for incompetency or misconduct, saying:

             [[Orig. Op. Page 7]]

            ". . . it has been held that 'retirement' does not constitute 'removal' within the meaning of the statute.  People ex rel. O'Brien v. Scannell, 53 App. Div. 161, 65 N.Y.S. 832, affirmed by the Court of Appeals on the opinion below in 164 N.Y. 572, 58 N.E. 1091. . . ."

            Although our court has rendered no decision specifically in point, there are a number of cases which definitely indicate that the court would, if confronted with the question, subscribe to the view expressed in the cases cited above.  The court has repeatedly held that there is no vested right to public employment and that an appointing authority is completely unhampered in its right to remove a public employee except to the extent prohibited by civil service or other tenure legislation.  Nostrand v. Little, 58 Wn.2d 111, 123, 361 P.2d 551 (1961); Yantsin v. Aberdeen, 54 Wn.2d 787, 345 P.2d 178 (1959);State ex rel. Ford v. King Co., 47 Wn.2d 911, 916, 290 P.2d 465 (1955).  In theYantsin case, supra, the plaintiff was suspended from the Aberdeen police department, presumably without cause, under a city ordinance providing for suspension without pay for a period up to thirty days.  The court upheld the validity of the ordinance against an attack that its exercise deprived the plaintiff of a vested property right given him by the city's civil service ordinance, saying:

            "A police officer has no property right in public employment which is protected by the due process clause provisions in our state and Federal constitutions.  As said inLudolph v. Board of Police Comr's. (1938), 30 Cal.App.2d 211, 216, 86 P.2d 118, 121,

            "'The right to an office or of employment with the government or any of its agencies is not a vested property right, and removal therefrom will not support the question of due process.'

            ". . .

            "This is not to say that a police officer does not have rights under civil service that will be protected,but they are only the rights given to him by the legislation creating the civil service system under which he is employed.  Payne v. State Personnel Board (1958), 162 Cal.App.2d 679, 328 P.2d 849; Pauley v. Noeppel (1953),  [[Orig. Op. Page 8]] 120 N.Y.S.2d 472, 1 Misc.2d 928;Risley v. Board of Civil Service Comr's (1943), 60 Cal.App.2d 32, 140 P.2d 167."  (Emphasis supplied.) (p. 788.)

            And quoting further from the opinion:

            "Before the adoption of civil service systems or other legislative assurances of tenure, the right of the proper authorities to suspend or remove policemen, firemen, or other public employees was absolute.  Civil service and other types of tenure legislation have placed restrictions on the power to suspend or remove employees who come within their purview.  It is, however, clear that the rights and privileges of public employees, including their protection against arbitrary suspension or dismissal, vary from state to state, from city to city, and even from department to department within the same city, in accordance with the provisions of the particular civil service system under which they are employed.  Any prerequisites and conditions relative to suspension and removal are determined by the governing statute, charter, or ordinance; and, absent such prerequisites and conditions, the city has the right to suspend or remove employees without giving any reason therefor.  State ex rel. Schussler v. Matthiesen (1946), 24 Wn.2d 590, 597, 166 P.2d 839;Darnell v. Mills (1913), 75 Wash. 663, 135 Pac. 475;Price v. Seattle (1905), 39 Wash. 376, 81, Pac. 847; Easson v. Seattle (1903) 32 Wash. 405, 411, 73 Pac. 496."  (Emphasis supplied.)

            InState ex rel. Isham v. Spokane, 2 Wn.2d 392, 98 P.2d 306 (1940), the court was concerned in part with whether a city civil service commission had the power to prescribe certain qualifications for the position of police matron in addition to those set forth in a state statute creating the position.  Quoting from the opinion:

            "It is also well-settled that a city may prescribe qualifications for municipal office in addition to those prescribed by the state  [[Orig. Op. Page 9]] statute.  State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94.  See the discussion of point [2] in this opinion, from which we quote, in part:

            "'The only attack made by the relator upon the charter is that it purports to superadd certain qualifications necessary for elective officers to those imposed by the legislature.  Assuming, for the sake of argument, that the language of the charter is to be interpreted as, in fact, imposing superadded qualifications, it does not follow that it contravenes the statute.  Had the framers of the charter sought to lessen the requirements demanded by the statute, a different question would be presented, for then the charter would be in direct conflict with the statute.  But that is not the case here.  Section 9929 merely provides that no person shall be competent to hold elective office unless he possesses certain qualifications.  It does not say that no other requirements shall be prescribed, nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute.'

            "We are of the opinion that the fact that the Spokane civil service rules provide for age limits and medical tests as to sight and hearing, etc., does not show a contravention of the statute of 1893.  Nor do we think that the elaborate provisions for mental tests do so.  These, we think, may be regarded as superadded qualifications, permissible under the rule above quoted from the Griffiths case."  (Emphasis supplied.)

            We find no statutory prohibition that would prevent any city from providing for a compulsory retirement age for its civil service employees.  We need not at this time consider what effect membership in a public employees retirement system might have upon this answer.  You have advised us that the personnel you have in mind are not members of such a retirement system.

            If the power of a municipality to suspend or discharge its employees is unhampered in absence of any controlling positive law limiting  [[Orig. Op. Page 10]] that power, and if a city can, even under civil service or other tenure legislation, superadd qualifications for its employees not inconsistent therewith, it follows that it can enact an ordinance establishing a compulsory retirement age for its civil service employees if nondiscriminatory and reasonable in light of the work performed, and if not contrary to any governing charter provisions.

            However, this same reasoning does not apply in deciding whether a civil service commission has the power to prescribe age limits for the compulsory retirement of employees subject to its jurisdiction.  In determining whether a city can take such action through its legislative body we begin with the premise that the power exists unless prohibited by statute or charter, while a particular civil service commission has no rule‑making authority except that expressly or impliedly granted it by the power by which it is created.  State ex rel. Olson v. Seattle, 7 Wn.2d 379, 110 P.2d 159 (1941); Allard v. Tacoma, 176 Wash. 441, 29 P.2d 698 (1934).  We find no authority in chapter 41.08 RCW or chapter 41.12 RCW, either express or implied, which would vest in a civil service commission created thereunder the power to prescribe a compulsory retirement age.  We are sure you realize that we could not at this time examine each city charter to determine whether or not such power can be or has been legally delegated to a particular civil service commission by charter or ordinance.

            If a city can, subject to the qualifications expressed in the analysis above, prescribe age limits for compulsory retirement, we see no reason why such action cannot be made to apply to persons having civil service status at the time such ordinance takes effect.

            In the case ofIn re Wallington's Appeal, 390 Pa. 416, 135 A.2d 744 (1957), an ordinance prescribing a mandatory retirement age for all city employees expressly provided for its application to those employed at the time the ordinance took effect.  In upholding the validity of the ordinance as applied to those persons having civil service status at the time the ordinance was passed, the court said:

            "Merely because an individual has attained a civil service status, this does not guarantee to him life tenure; . . .

            "We have consistently held that the purpose of the civil service acts is to insure employment, and security and protection for faithful and obedient public servants, regardless of political affiliation.  Gaul v.  [[Orig. Op. Page 11]] City of Philadelphia, 384 Pa. 494, 499, 121 A.2d 103.  This is not a dismissal, based upon misconduct, incompetence, or political affiliation, but retirement based upon age limitation. . . ."

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GERALD C. WEAVER
Assistant Attorney General