Opinion
In the present action the plaintiff sought a reconsideration of a classification by the civil service commission which provided for "police sergeants" but not "detective sergeants," claiming that this in effect abolished the latter rank and demoted him from detective sergeant to police sergeant. In the argument before this court counsel for both parties were in agreement that the effect of the classification was not to abolish the office of detective sergeant, and that the trial court was correct in its conclusion to this effect, and that had this conclusion been embodied in the judgment file which, as drawn, merely found the issues for the defendant, it would have correctly expressed the true legal situation. This court remanded the case with direction to include the conclusion in the judgment in addition to the general finding of the issues for the defendant.
Argued March 7, 1939
Decided April 5, 1939.
APPEAL from the action of the defendant in denying the plaintiff's appeal to it from an alleged reduction in his grade from detective sergeant to sergeant, taken to Hon. Kenneth Wynne, judge of the Superior Court, in Fairfield County; a motion to dismiss the appeal for want of jurisdiction was denied, the issues were tried to the judge and judgment was rendered dismissing the plaintiff's appeal, from which both parties appealed to this court. Judgment set aside and case remanded with direction.
The defendant filed a plea in abatement, which was dismissed.
PER CURIAM. This case came into the Superior Court as an appeal by the plaintiff under the provisions of 21 of the Civil Service Law of the city of Bridgeport. The trial court dismissed the appeal and from its judgment the plaintiff has filed an appeal to this court. The defendant has filed a plea in abatement. In 1935 the charter of Bridgeport was amended to establish a civil service in the city. Special Laws, 1935, p. 261. Section 21 of the act provides for an appeal from the commission to any judge of the Superior Court "in the manner prescribed by section eighty-seven of the charter except that such appeal shall be served, as therein directed, on the chairman of the commission." Section eighty-seven of the charter deals with the dismissal of members of the police and fire departments and others holding positions in the city government to which they were appointed for a fixed term or on good behavior and it provides: "Any such member or person so dismissed may appeal from the order of dismissal to any judge of the superior court, which appeal shall be made returnable not less than three nor more than six days from the date of dismissal, and shall be served on the official or on the clerk of the common council or board which ordered the dismissal, or at his usual place of abode, at least two days before the time fixed for the hearing of such appeal; and said judge, having given such further notice as may be deemed necessary, shall forthwith hear such case de novo, and shall dismiss or retain said appellant as he may deem proper, and may award costs at his discretion, and the decision of such judge shall be final." 15 Special Laws, p. 528. The claim of the defendant is that, as the charter makes the decision of a judge upon an appeal under 87 of the charter "final," no appeal to this court could be brought from the decision of an appeal taken under 21 of the Civil Service Law. This claim necessarily implies that 21 was intended not only to determine the manner in which an appeal should be brought under the Civil Service Law but also the scope of the issues to be litigated and the effect of the judgment. The word "manner" ordinarily refers to the mode or way in which a thing is to be done and does not include the result to be accomplished. Northrop v. Curtis, 5 Conn. 246, 253; Brown v. O'Connell, 36 Conn. 432, 447; Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, 174, 80 N.W. 484; Getty v. Holcomb, 79 Kan. 224, 227, 99 P. 218. That the word "manner" was used in its usual sense in the provision in question is strongly indicated by the character of the exception because that, describing as it does the person upon whom service shall be made, is concerned only with the method by which the appeal may be brought into court. Moreover that the provision in 21 of the Civil Service Law did not intend to give to the appeal there authorized the scope that is given to an appeal under 87 of the charter is apparent from the fact that the former covers not only removals from office but also reductions in classification whereas the latter is restricted to dismissal from office. There is another consideration which points to the conclusion that only so much of 87 of the charter applies as concerns the method of taking the appeal. Administrative duties cannot constitutionally be imposed upon our courts or any of their judges in the guise of an appeal. Norwalk Street Railway Co.'s Appeal, 69 Conn. 576, 37 A. 1080; Spencer's Appeal, 78 Conn. 301, 305, 61 A. 1010; New York, N. H. H.R. Co.'s Appeal, 80 Conn. 623, 640, 70 A. 26. Section 21 of the Civil Service Law is concerned with the removal, discharge or reduction in classification of employees of the city and ordinarily the exercise of such a function is executive or administrative in its nature rather than judicial. Avery v. Studley, 74 Conn. 272, 283, 50 A. 752. There is then serious doubt — we express no more definite opinion — whether 87 of the charter, providing as it does that the judge to whom the appeal is taken shall hear the matter de novo and "dismiss or retain the appellant as he may deem proper" is valid under our Constitution. We would hesitate to give to the Civil Service Law a construction of such doubtful constitutionality where the statute can fairly and reasonably be so interpreted as to obviate that doubt. Antman v. Connecticut Light Power Co., 117 Conn. 230, 237, 167 A. 715. Section 21 does not purport to specify the functions of a judge upon an appeal taken under its provisions. It merely provides that an appeal may be taken in the manner provided in 87 of the charter except as regards the person upon whom service is to be made. As is said in Avery v. Studley, supra: "The foregoing considerations determine the nature of the appeal"; it is implicit in the authorization of that appeal without provision as to its scope that it presents those issues proper upon an appeal from an administrative board to a judicial officer. The provision in 87 of the charter that the decision of a judge hearing an appeal shall be final is not applicable under 21 of the Civil Service Law. The present appeal to this court was properly taken under the broad provisions of 5689 of the General Statutes permitting an appeal in any cause or action before a judge when jurisdiction of any proceeding is vested in him. As the question the parties have sought to present by the plea in abatement goes directly to the jurisdiction of this court we must consider it regardless of the way in which it is presented to us. Marcil v. Merriman Sons, 115 Conn. 678, 682, 163 A. 411. The proper method to raise the issue was, however, by a motion to erase and not a plea in abatement. Klein v. Capital National Bank Trust Co., 124 Conn. 685, 2 A.2d 489. Plea in abatement is dismissed.
James C. Shannon, with whom, on the brief, were Frank L. Wilder and Henry E. Shannon, for the appellant-appellee (plaintiff).
John V. Donnelly, for the appellant-appellee (defendant).
An ordinance of the city of Bridgeport enacted in 1920 established the rank of detective sergeant in the police department. In 1926 a further ordinance provided for the appointment of members of the detective division as "permanent detective sergeants." The plaintiff was thereupon appointed to that rank and his position has always borne the designation of "detective sergeant." In 1935 the charter of the city was amended to establish a civil service and the civil service commission was given power to adopt a classification of employees, subject to a majority vote of the common council and the approval of the mayor. 22 Special Laws, p. 262, 4. A classification was adopted which provided for "police sergeants" but not "detective sergeants." Under the provisions of the charter the plaintiff appealed to the commission, seeking a reconsideration of this classification to provide for the grade of detective sergeant and upon denial of relief to him appealed to a judge of the Superior Court who also denied him relief.
The plaintiff claimed that the classification of "police sergeant" without any classification of "detective sergeant" in effect abolished the latter rank and that to classify him as a police sergeant was a demotion. A provision of the charter of the city provides that its common council shall not abolish any existing office or reduce the rank or salary of any officer, unless the office becomes vacant or an officer is removed for cause. 19 Special Laws, p. 36. The amendment to the charter concerning civil service contains a provision: "Each person holding an office created by ordinance and serving for a stipulated term shall continue in such office until the expiration of such term, at which time such office shall be filled, pursuant to the provisions of this act." 22 Special Laws, p. 263, 6. If the effect of the classification made was to abolish the office of detective sergeant it would certainly be of questionable validity under these provisions.
At the argument before us counsel for both the plaintiff and the defendant were in agreement that this was not the effect of the classification and that the trial court was correct in its conclusion stated in the finding: "The position of the plaintiff in the police department remained the same after the allocation of his position to the classification plan, as it had been before such allocation, and the plaintiff continued to be possessed of whatever rights were incident to his position by reason of the circumstances of his appointment thereto." Counsel also agree that had this conclusion been embodied in the judgment file, which, as drawn, merely finds the issues for the defendant, it would have correctly expressed the true legal situation. If the trial judge had been requested while the matter was still before him to insert this conclusion in the judgment he would, no doubt, have done so. Under the circumstances the only way now to set the record straight is for us to remand the case to him with direction to include this conclusion in the judgment in addition to the general finding of the issues for the defendant.