State Ex Rel. Moulton v. City of Spokane

Blake, J. On January 14, 1932, the relator was duly appointed, in accordance with the rules and regu *680 lations of the civil service commission of the city of Spokane, to the position of patrolman in the police department. The effective date of the appointment was January 16th, on which date relator entered into the performance of his duties. On July 19, 1932, the chief of police sent the following communication to the civil service commission: “City of Spokane “Civil Service Commission “Discharge of Probationer “Spokane, Wash. “Civil Service Commission, July 19, 1932. ‘ ‘ Gentlemen: “On January 16, 1932, D. C. Moulton was appointed on probation to the position of patrolman, Police Division, and has served in this capacity to the present time. “He has failed to meet the requirements of this Department in the position to which he was appointed, and I recommend that his services be discontinued for the following reasons: “Service Unsatisfactory. “Upon receipt of a statement of your approval of this recommendation, he will be dropped from the service. “Approved: “Leonard Punk Arthur L. Hooper, “(Head of Department) (Appointing Officer) “ Commissioner of Public Safety Chief of Police ‘‘ (Official Title) (Official Title) ’’ Within ten days thereafter, relator filed with the civil service commission a notice of appeal from the order of discharge. The civil service commission declining to hear the appeal and the chief of police refusing to restore him to the position of patrolman, relator filed in the superior court of Spokane county a petition for a writ of mandate directed to the respondents. In his petition, relator set up the facts substantially as above narrated, and alleged that *681 he had been wrongfully discharged. He prayed that a writ of mandamus issue requiring respondents to reinstate him in the position of patrolman, and that he have judgment against the city for the amount of his salary during the period of wrongful separation from his position. An alternative writ was issued on relator’s petition. Respondents interposed a demurrer to the petition and a motion to quash the alternative writ. The demurrer was sustained, and the motion to quash the alternative writ was granted. Relator appeals. The charter of the city of Spokane creates a civil service commission, and confers power upon the commission, with the approval of the city council, to make rules providing for classification and examination of city employees, and to fix a probationary period to be served by all employees before their employment may become permanent. Pursuant to this authority, the civil service commission, with the approval of the city council, adopted, among other rules, the following: “Rule 7. . . . “§9. Probationary period: All persons certified from an original entrance eligible list shall be on probation for a period of six (6) months of actual service. The probation period shall not include time served as a provisional employee but shall date from the time of regular appointment from an eligible list. Within ten days of the termination of such probationary period, the appointing official shall file a report with the commission certifying that said employee has met the requirements of the department. Upon receipt of such report by the commission, the appointment shall be deemed complete. “§ 10. Incompetent Probationers: If the appointee shall be found incompetent or inefficient in the performance of the duties of the position he is filling, the appointing official shall certify same in writing to the commission and such probationer shall be dropped from the service.” *682 The determination of the issue presented in this case turns on the interpretation to be given these sections. If, under § 9, relator’s probationary period had expired, then he was entitled to all the rights of a permanent employee, and he could not be discharged, except for cause, and then only upon the filing, by the chief of police, of formal charges with the civil service commission. As a permanent employee, it is conceded he would have a right to appeal from such order of discharge and to a hearing before the commission. While § 9 is not free from ambiguity, there is one thing it definitely provides for. That is, that the period of probation shall be “six months of actual service.” It is not for six months and one day, nor six months and ten days. It then provides that the appointment shall be complete when the appointing official reports to the commission and certifies that the employee has met the requirements of the department. But this, we think, is merely an administrative act, required of the appointing official for the purpose of clearing the records of the department and of the civil service commission. For, in terms, the duty imposed by the section is mandatory. There is no option left to the official after the expiration of the probationary period. It is contended by respondents, however, that, under § 10, the appointing official may reject the probationer for inefficiency or incompetency at any time within ten days subsequent to the expiration of the probationary period. We do not think that § 10 is susceptible of this interpretation. To so construe it, violates a cardinal rule of statutory construction, namely, that seemingly conflicting statutes will be so interpreted as to make them both effective. To place the suggested construction on § 10, would necessitate reading into it a provision that is not there, and would impair the plain *683 and explicit terms of § 9. In other words, the suggested construction of § 10 would necessarily extend the period of probation to six months and ten days. We do not think such was the purpose of § 10. It is, in effect, a proviso appended to § 9, empowering the appointing official to discharge the probationer during the probationary period and depriving the probationer of the right to appeal and hearing from such order of discharge. It is not its purpose to extend the period of probation. The purpose of a probationary period is to give the appointing official an opportunity to determine whether or not the probationer is efficient and competent. Obviously, the purpose of § 10 is to have the question of the probationer’s efficiency and competency subject to the determination of the appointing official during the probationary period. He must determine the question, however, before the expiration of the period of probation. Otherwise, by § 9, the duty is imposed upon him, within ten days thereafter, to certify the employee’s qualifications to the civil service commission. We think the court erred in sustaining the demurrer to the petition and in quashing the alternative writ. The judgment is reversed, and the cause remanded for further proceedings. Main, Mitchell, Tolman, Holcomb, and Millard, JJ., concur. Geraghty, J., took no part.