The opinion
Geraghty, J.
(dissenting) — After the court, in the case of
State ex rel. Knez v. Seattle,
176 Wash. 283 , 28 P. (2d) 1020 , 33 P. (2d) 905 , had held void the attempt to reduce the pay of firemen by the waiver process, the city of Seattle was faced anew with the problem of retrenchment in the fire department. Still having a choice of legal means for accomplishing this purpose, by referendum amendment of the salary ordinance or by reduction of the force, it attempted instead the new expedient giving rise to the present controversy.
By ordinance existing at the time, firemen were granted one day off in every eight without deduction in pay. The city council passed ordinances suspending this provision, required firemen to take one day off in every eight without pay, and directed the fire chief to issue any orders necessary to carry this policy into effect. The chief thereupon made the order quoted in the majority opinion. The effect of this order was to deprive the firemen of salaries for a month and a half in each year, although their days of active duty remained the same as before.
The city seeks to justify this arrangement by calling it a suspension under Art. XVI, § 12 of the city charter. Section 12, quoted in the majority opinion, relates to
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the manner in which employees may be separated from the service for cause and contains this sentence:
“Nothing in this article shall limit the power of any officer to suspend without pay a subordinate for a period not exceeding thirty days.”
On this sentence, the city’s contention is specifically grounded.
It seems clear to me that the suspension authorized can be made for disciplinary purposes only. The word “suspension” is defined by Webster:
“Temporary forced withdrawal from the exercise of office, powers, prerogative, privileges as a member or communicant, etc.; ...”
It is defined by the Oxford dictionary:
“The action of debarring or state of being debarred, especially for a time, from a function or privilege; temporary deprivation of one’s office or position.”
This obvious meaning of the term was embodied in rule nine- of the rules of the civil service rules, reading:
“For disciplinary purposes, the appointing officer shall have exclusive authority to suspend any employe without pay for a period not exceeding thirty (30) days.”
Here, it is not contended that the firemen were even temporarily separated from the fire department. They were merely required to take time off without pay. They remained members of the force in good standing, subject to its rules and regulations, and obliged to respond to calls for duty when emergency required. They could not leave the city without permission, and the trial court states, in its memorandum opinion, that they did in fact, during the periods of lay-off, respond to fire calls and assist in the extinguishment of fires.
Without criticising the motives of the city officials
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who devised this plan, I cannot help thinking it a plain evasion of the provisions of the city charter. To hold that the city government may do what was attempted here, would permit practical abrogation of the civil service provisions of the charter. In speaking of a similar attempt to evade the law, the court of appeals of Kentucky, in
Gorley v. Louisville,
23 Ky. L. 1782, 65 S. W. 844 , said:
“If the board of public safety may legally lay off or suspend policemen for four days in each month in their discretion, they might lay them off for twenty-eight days, and thus practically nullify the law.”
Believing that the judgment of the trial court was correct, I dissent from the majority opinion.