Opinion
No. 71-438
Decided November 21, 1972. Rehearing denied December 12, 1972. Certiorari granted February 20, 1973.
After serving from 1951 to 1967 in the air force, former state civil service employee sought reinstatement in his former position. District court ordered the reinstatement, and civil service commission appealed. Affirmed
1. WAR AND NATIONAL DEFENSE — National Emergency — Declared by President — 1950 — Not Terminated — Proclamation — Terminating Combat Activities. National emergency declared by presidential proclamation in 1950 was not terminated by 1955 presidential proclamation which set date for termination of combat activities in Korean conflict.
2. National Emergency — Declared — Proper Authority — Continues — Courts — Cannot — Declare or Terminate. A national emergency once "declared by proper authority" continues until terminated by proper authority, and the courts can neither declare the existence of, nor the termination of, a national emergency.
3. CIVIL SERVICE — Employee — Active Service — Armed Forces — 1951 to 1967 — Entitled — Reinstatement — Statute. Where state employee was called into active service in armed forces in 1951 and national emergency declared by president in 1950 had not been terminated when employee was released from active duty in 1967 and sought reinstatement in his state job, by the express terms of applicable statute, the employee was entitled to that reinstatement.
4. Statute — Applicable — Those Engaged — Military Service — Time of Enactment — And Subsequently. Statute that affords state employees who engage in active military service in time of war or national emergency the right to be reinstated in former state position is, by its terms, applicable to those who were so engaged at the time of its enactment as well as to those who became so engaged after its effective date.
5. STATUTES — Public Policy — Declared by Legislature — Providing Reinstatement — Employees — Served — Military Service — Courts — Administrative Agencies — May Not Substitute — Own Notions. Although civil service commission contends that it would be contrary to public policy to reinstate former state employee to former position where that employee was called to active military duty in 1951 and subsequently voluntarily pursued military career to retirement in 1967, the public policy of state, as manifested by statute, entitles such employee to reinstatement, and courts and administrative agencies are not at liberty to substitute their own notions of public policy for the public policy of the state as declared by the legislature.
Appeal from the District Court of the City and County of Denver, Honorable Manlius T. Hancock, Judge.
Gail L. Ireland, Faith M. Olsen, for plaintiff-appellee.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert L. Hoecker, Assistant, for defendants-appellants.
William H. Fleming, after his release from active duty with the armed forces, sought reinstatement to his former position in the classified service of the State of Colorado. The State Civil Service Commission of Colorado (Commission) after a hearing denied Fleming's request for reinstatement. Fleming then commenced the present action, and, after a review of the record, the court entered judgment ordering the Commission to reinstate Fleming. The court also remanded the cause to the Commission for a determination of the amount of back pay, if any, to which Fleming was entitled. The Commission has appealed. The judgment of the trial court is correct, and it is affirmed.
On July 1, 1947, Fleming was employed by the Department of Revenue of the State of Colorado. During the period of his employment, Fleming, who had served in World War II, was in the air force reserve. On March 6, 1951, Fleming was ordered to report for active military service effective March 9, 1951, for an indefinite period. On April 18, 1951, the Commission granted Fleming indefinite military leave without pay. Fleming served continuously in the armed forces until he was relieved from duty June 30, 1967.
Fleming's service in the armed forces was "voluntary" in that he could have requested and obtained his release any time after July 30, 1952. The leave which the Commission granted Fleming was designated as "indefinite military leave," and the Commission's records reflected Fleming's status as "on indefinite military leave" continuously until Fleming notified the Commission of his desire for reinstatement.
During the period of his military service, Fleming periodically discussed his status with employees of the Commission and was told that the official personnel records showed that he was on indefinite military leave. Fleming also made contributions to the State Public Employees Retirement Association while he was on leave.
The Commission's denial of reinstatement was based upon its findings that: (1) Fleming was granted military leave without pay for an indefinite period for the Korean emergency; (2) the Korean emergency was officially and legally terminated on January 31, 1955; and, (3) Fleming did not return to state service within one year after the termination of the Korean emergency. On the basis of these findings, the Commission concluded that Fleming's military leave was terminated, and he was deemed to have resigned, effective January 31, 1956, and was not entitled to reinstatement.
The decision of the Commission was in error because it deprived Fleming of his statutory right to reinstatement under the provisions of C.R.S. 1963, 94-1-35. This statute provides:
"Subject to the conditions hereinafter prescribed any officer or employee of the state . . . who engages in active military service in time of war or other emergency declared by proper authority of the state or the United States, for which leave is not otherwise allowed by law, shall be entitled to leave of absence from his public office or employment without pay during such service with right of reinstatement as hereinafter provided."
On December 16, 1950, President Truman issued Presidential Proclamation No. 2914 declaring a national emergency because of events in Korea. Shortly thereafter, Fleming was called to active duty, and the Commission granted him indefinite military leave. Fleming remained on active duty until July 30, 1967. Prior to completing his military service, Fleming notified the Commission that he intended to return to his state job, and, shortly after his release from military service, he notified the Commission that he was available for employment.
Fleming was entitled to reinstatement if his active military service was "in time of war or other emergency declared by proper authority. . . ." His service after April 28, 1952, was not in time of war because World War II terminated on that date by operation of the treaty of peace with Japan and Presidential Proclamation No. 2974. Fleming's service was, however, in time of the "emergency" which was declared in Presidential Proclamation No. 2914.
[1] The Commission takes the position that the national emergency declared in Presidential Proclamation No. 2914 was terminated by Executive Order No. 10585 issued January 1, 1955. This Order fixed January 31, 1955, as the date of termination of combat activities in Korea. The Commission's construction of Executive Order No. 10585 is erroneous. Termination of combat activities does not terminate a national emergency. In Pyramid Life Insurance Co. v. Masch, 134 Colo. 70, 299 P.2d 117, the court stated:
"The existence or nonexistence of a state of war is a political, not a judicial, question and it is only when a formal declaration of war had been made by the Congress that judicial cognizance may be taken thereof. Once so declared by the political department, it becomes binding upon the courts, otherwise not."
[2] The rule stated in Pyramid applies to the existence or nonexistence of a national emergency as well as to the existence or nonexistence of a state of war. The existence of a national emergency is not a judicial question. Under the provisions of C.R.S. 1963, 94-1-35, a national emergency is one "declared by proper authority of the state or the United States. . . ." An emergency once "declared by proper authority" continues until terminated by proper authority, and the courts can neither declare the existence of, nor the termination of, a national emergency. An examination of recent federal court cases demonstrates that the national emergency declared December 16, 1950, had not been terminated when Fleming was released from active duty and applied for reinstatement to his state job. In Sardino v. Federal Reserve Bank, 361 F.2d 106 (2d Cir. 1966), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130, the court stated:
"On December 16, 1950, President Truman, taking particular note of 'recent events in Korea and elsewhere' but also making general reference to 'the increasing menace of the forces of communist aggression,' proclaimed the existence of a national emergency. 64 Stat. A 454. The declaration has never been revoked; rather it has been repeatedly and recently reaffirmed. Exec. Order No. 10896 25 F.R. 12281 (1960); Exec. Order No. 10905, 26 F.R. 321 (1961); Exec. Order No. 11037, 27 F.R. 6967 (1962)."
Similarly, in United States v. Achtenberg, 459 F.2d 91 (8th Cir. 1972), a case concerned with the viability of the Sabotage Act, the court stated:
"The state of emergency proclaimed by the President on December 16, 1950 has not been terminated either by the president or concurrent resolution of Congress. See Sardino v. Federal Reserve Bank, [supra]. In our view the statute contemplates a termination of an emergency only by act of president or by concurrent resolution of Congress. No Presidential proclamation or Congressional concurrent resolution has been enacted to terminate the emergency."
Accord, Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977, 89 S.Ct. 1457, 22 L.Ed.2d 756; and Nielsen v. Secretary of Treasury, 424 F.2d 833 (D.C. Cir. 1970).
[3] Thus, Fleming's military service was in time of a national emergency, and he is entitled to reinstatement under the express provisions of C.R.S. 1963, 94-1-35.
The decision of our Supreme Court in Dies v. City and County of Denver, 174 Colo. 217, 483 P.2d 378, is not in conflict with our holding that the national emergency declared in Presidential Proclamation No. 2914 was not terminated by the Executive Order of January 1, 1955, terminating combat activities in Korea. In that case, neither the termination date of the national emergency nor the legal effect of the Executive Order of January 1, 1955, terminating combat activities was an issue.
[4] The Commission argues that the statutory right to reinstatement contained in C.R.S. 1963, 94-1-35, is not available to Fleming because the statute was enacted in 1955. The Commission argues that the statute has no retroactive effect. This argument is rejected. The statute, by its terms, applies to employees of the state who engage in active military service in time of war or other emergency, and it applies to employees who were so engaged as of the effective date of the statute, as well as those who became so engaged after its effective date.
[5] The Commission also contends that it is contrary to public policy to permit Fleming to pursue a military career until retirement and then be reinstated to state service. Fleming claims a right to reinstatement under a statute enacted by the General Assembly. It is the duty of the courts to enforce the statute as written. The public policy of this state as manifested by statute is to permit a public employee who is engaged in active military service to be reinstated to his former position upon completion of such service under the terms and conditions specified in the statutes. C.R.S. 1963, 94-1-36. Courts and administrative agencies are not at liberty to substitute their own notions of public policy for the public policy of the state as declared by the legislature.
Since Fleming is entitled to reinstatement under C.R.S. 1963, 94-1-35, it is unnecessary to consider this alternative contention that he is entitled to reinstatement because the leave granted him by the Commission was for an indefinite time and was not, by its terms or by necessary implication, limited to any particular war or national emergency.
Judgment affirmed.
JUDGE ENOCH concurs.
JUDGE PIERCE dissents.