*1 683 compensation, resolved favor of and that the humane purposes which these acts seek to serve leave no room ’ ” for narrow technical constructions. Company
We held in the case of Lucedale Veneer v. Rogers, Miss., So. construction of Compensation Workmen’s statutes he must sensible opinion well as liberal. We are of the the word “dependent” Compensation as used in the Workmen’s person dependent upon employee, Act means a who is part., support in whole or in for his relies same. There was substantial evidence to sustain the findings of the commission and the is affirmed.
Affirmed.
PER CURIAM. opinion adopted above as the Court, judg- and for the indicated, reasons therein ment of the court below is affirmed.
City of Meridian v. Davidson. May 14,
In Banc. (53 (2d) 48)
No. 37905 So.
686 Singley, appellant.
Dunn for & appellee. Miller, and M. B. Adams V. Gerald C. J. McGehee, unique, incongruous, presents or rather
This problem in- whether a the circuit can court telligently when civil service determine commission “good municipality has faith acted for cause” department, discharging fire a member its where have before evidence which same does not testimony on hears the commission but additional acted, passed the commission. the same issues fact a reexamination of some of necessitates And questions in McLeod Civil Com- involved v. Service (2d) 916; mission, 198 Miss. of Jackson So. 319; v. Miss. So. McLeod, although principle statute, announced, under a different & Board, v. 200 Miss. California Co. State Oil Gas *4 defining (2d) 28 120 27 So. and other cases So. limiting in the circuit the issue be determined and legislative appeals executive, court on from dеcisions of agencies. or administrative appealed herein, of the circuit court jury, upon the verdict of the reversed decision
based City Meridian Civil Service Commission George as Boark, the action of J. affirmed which had appellee, Manager, discharging the B. David- B. City employee a civil service 27, 1949, December son, on city. department of the Theretofore on December fire suspended by employee the chief of 24, 1949, investigation Pigford, pending department, P. M. the fire charges preferred against specific him thereafter employee, with that on the the result said city manager day 1949 the the em- of December advised ployee as follows: charges upon information furnished me and
“Based against you by that have Pigford, filed Fire M. been Chief P. you advise this is his recommendation suspension hereby approved and dismissal is following charges specific being ordered are made of record: Being liquor drug
“1. under the influence of or while duty at or about 9:15 a. m. December 1949, at the Mississippi. No. Fire Station, Meridian, Committing Terry. Captain “2. an assault J. E. superior “8. Insubordination to officers. Being
“4. employee.” discourteous ato fellow Thereupon, writing made his demand in investigation charges by for the civil service city, commission of the he since tire was entitled to hearing pro- before such commission virtue of the Chapter visions of 1944. Laws of Section 9 of Act reads as follows: everyone “The holding tenure place, an office, position employment or provisions under the оf this act only during good shall any be person behavior, may discharged, suspended pay, removed or without deprived demoted or reduced in or rank, of vacation privileges, special privileges, other following reasons:
“Incompetency, inefficiency, duty; or inattention of dishonesty, intemperance, immoral conduct, insubordi- nation, public, discourteous treatment of the fellow *5 any
employee, act commission omission, or other of or injure public tending service.” required hearing had law, time was "Within at which the accused commission, the civil service before represented person appeared was counsel, and and fully given opportunity presumably answer an testimony charges by other and his own he to introduce contradict testi witnesses mony desired city the witnesses called sustain them. hearing testimony pro con, of witnesses and After among reciting, order other entered its the commission appearing things, December 27, '‘it George Manager City City J. Meridian, filed R. Davidson and dismissed said R. Roark, written enumerating’ against as them accusations” him, complete full and that "a and forth, hereinbefore set investigation having public hearing* had been witnesses examined and the Board Civil numerous being premises fully in the advised Service Commissions conclusive and the evidence is finds that in its estimation charges against R. R. the written made the said sustains . December 1949 . . The action Davidson on City discharging Manager suspending dis or missing R. Davidson an the said R. Department therefore
Fire of Meridian is approved.” affirmed
Thereupon, taken the circuit court of county, jury, a trial when where before had testify admittedly who did not witnesses testified several at hearing the civil and it commission, before service appear whether from the record before us as to does not testify all of the witnesses who did before not again civil service commission had thereafter testified the circuit court. things, among provides, 10 of the Act other
Section investigation [before commission] that “The shall question the determination confined to discharge suspension, whether such demotion or removal, religions political made was not reasons was or After or was made faith or cause. and was investigation may, if in esti commission its *6 removal, evidence the conclusive, mation the affirm suspension, find that de removal, or if it shall or political religions for or was reasons, motion was made or good cause, not made in faith for shall the im order re-employment person mediate reinstatement of such or place, position, employment in office, or from which ” person . . removed, such was . And said section provides judgment that “If such or order he farther by majority in thereof, concurred commission or may appeal [court] the accused therefrom to the circuit county regard of In wherein he resides.” to such “ appeal, provided it is there be a shall written notice appeal, stating grounds demanding of thereof, transcript papers that a the record and all certified relating affecting on file in the office the or commission judgment by tо such or filed order, be the commission days, with such court. The shall, commission within ten filing* certify after the of such notice, make, and file such transcript with such court. The circuit court said shall thereupon proceed appeal to hear and determine such by jury; and the accused shall have the of trial provided, hearing however, that such shall be confined to the determination whether the or order discharge, suspension by removal, demotion or made good the commission, was or was not in made faith appeal except cause, and no shall such court be taken upon ground grounds.” (Italics ours.) or In his appeal, employee notice of he did not state appeal desired on the limited set issue last above ground being but (appeal) forth, stated: “The which against that the evidence was not conclusive him the question discharged good whether or not he was in by Pigford faith for cause either P. Fire M. or Chief George City Manager; (Italics Roark, Mr. . .” . ours.) appeal whether court the issue is not the circuit Oil manager city department acted fire
the chief acted whether the commission good but cause, faith for in hearing all of testi- good after faith for cause hearing was pro at which the mony eon, charges against time to answer the first called required, jury in circuit court was him. Nor given court, Act the instructions under guilt when was conclusive evidence of believe the com- but whether or not the commission, heard believing faith for cause acted mission support had heard which it conclusive to be evidence against it to charges, heard the evidence contrary. point made no However, assignment whether or here, as to of error no there is per- properly the commission not the *7 appeal having particular. been treated The in that fected regard in ac- court as one taken in the circuit in that it far as treat here so with the we shall so Act, cordance purpose present point of the for the is concerned that appeal to this Court. transcript employee that a demanded of certified papers board in of the file the office and all on
the record commis- filed the commissioners of civil service required by Act in the court, with the circuit sioners testimony civil question, before the service taken but the reporter nor neither transcribed commission the Therefore, circuit court. clerk of the with the filed by the confined jury which was the issue provisions of Act to the determination of the appealed the commission whether the good cause”, faith for made in not “was or was testimony knowing com- what no means of had approved affirmed when it had acted mission employee discharging manager city of the action preferred against charges him. on the determining commission civil service had In jury good in the circuit faith for cause, not acted in necessarily by the influenced in its decision court was testimony rendering’ the additional witnesses when its employee. Then it was too, in favor verdict jury that the should know whether or all essential appear in fact the witnesses who did before civil testify being were likewise service commission called jury jury, if the the same facts before the was to good intelligently determine the part of the faith on the issue commission when latter reached the con- on the evidence clusion before had guilty complained Otherwise, been conduct of. the impossible called to decide an issue which was say, not, that is to it could determination; proper justification, with have found that the commission good testimony not act did faith basis of the commission did not hear. employee,
Moreover, is conceded counsel for the manifestly testimony and it is true, same could produced not be before a in the circuit court from memory they quite naturally of the witnesses. And questions would be asked additional and about other regard charges material facts to the truth relied on. may Then too, some of witnesses die other- go beyond jurisdiction wise and remain court pending appeal and trial —witnesses on whose testi- mony may chiefly the commission have relied reached its conclusion faith. Thus, need to have the testimony taken before the commission and transcribed for use to the circuit court is self-evident. *8 foregoing We that think considerations it make necessary that we portion now overrule that of the decision in the case of McLeod v. Civil Service Commis 198 (2d) sion, Miss. 21 721, So. 917, wherein 916, action of trial sustaining court was affirmed in motion transcript to strike from the reсord the of the evidence heard the civil service commission, provide said: “The statute wherein Court does not mating transcript aof of the for the evidence before the part Civil appeal of the Commission, Service record on provides expressly the Circuit but that Court, by jury;’ ‘the accused have of trial i. shall e., guidance jury before a under the trial de novo and control judge, of the trial each these of branches of the court discharging always the same functions that does therein.” trials beyond power
It would have been of Legislature grant foisting a trial de novo in the of sense nonjudicial performance a court of say permitting that functions, is to in the sense judgment court or to substitute their own the civil service commission when latter had purely exercised an executive function. In the case California Co. v. Board, 824, State Oil & Gas 200 Miss. (2d) 27 So. 542, So. was said: 120, acceptation “A trial de within the common novo, Attorney term, and as in the Knox, defined case of General L. N. v. Dantzler Lumber 148 Miss. Co., So. and other decisions means that the case Court, shall be tried the same if it before, as had not been tried conducting* may and the court own a trial substitute its findings judgment inferior for those of the tribunal from which the is taken.” Such beyond Legis power a trial is the constitutional lature to order where there is to in the be reviewed circuit court the action of a commission in the exercise purely of a executive In or administrative function. may uphold constitutionality that we order question, Act in it is essential that the circuit court language express limited, was done Act, judicial determining to the function whether or commission a basis had such affirmatively substantial evidence as not show the commission had faith without cause, acted bad
693 employee on which issne and appellant carried the harden as the circuit court. In the Commission, case McLeod v. Service Civil supra, upheld constitutionality this Court the Act question pointing redeeming’ in without out its feature alleged invalidity. on the issue of its But constitutional styled City in the second v. McLeod case, of Jackson phil- McLeod, Miss. 819, 320, So. osophy again being treating in the Act decision, jurisdiction constitutional and sustaining hearing circuit is based the fact that appeal such “shall he confined to the determination discharge, whether the removal, or order of suspension demotion or the commission, made orwas good appeal was not made faith for cause, and no except upon ground such court shall be taken or grounds.” say, That is to the circuit court would not permitted guilt to determine the or innocence employee charge charges against of the him, since may disagree the fact that the circuit court with the guilt commission as to the or innocence of the finding would no more necessitate a that the commission had not acted faith on the what basis of reasonable men could deem a sufficient cause than our disagreement with the a chancellor conclusion of impute issue of fact would faith bad him. The fact may cоntrary weight that we think the of the evidence is finding require to his does not a reversal, even unless manifestly wrong, he is and furnishes no basis itself part alone for an inference of bad faith on the trier of the facts, whether an executive or administrative agency, judge. or a trial case, the McLeod second
supra, pointed municipal also out that council employing discharging employees municipal is acting capacity, in an executive or administrative investigation the civil service in its commission agent moving city, under the cited as the Act, within Therein same function. ambit Legislature could “The confer on a held that Court authority judicial court the court or other discharge city employees appoint . . . *10 directly it could not the it could not so do so as do appeal, already pointed of an and as out indirect device Legislature to the cited has been careful not do so in the procedure in the case reinstate Act.” The instant would discharged employee. discussing In issue limited or not the tried in the court of whether to be good opinion faith for cause, commission had acted pointed only that that would or further out “To extent judicial question.” a And the could issue become competent, therefore, held: “It was not Court jury appeal, for its convert the Circuit Court and to body an themselves administrative and to become into original authority a commission with if civil service to to -whether the minds of the court and determine there was cause for the dismissal this case. powers government which Constitution divides separate departments, usurp three neither to into authority of the and other, stands forth forbids.” judge case, the first the trial decided the McLeod In jury, appeal and without on the second Court case for the set aside the verdict city peremptory that the instruc- held was entitled to judgment notwithstanding verdict; tion or to a therefore of those we were either confronted unique presented by appeals with the situation the record from are to now before which we unable deter- us, mine or not case made in whether different circuit court from made before commission testimony introduced. view of additional v. Oil rate, was held State At California Co. involving though supra, & the construction Board, G-as at variance with one now before of a statute much ‘‘ appellant particulars, allow us in substantial present case a different state of the Circuit Court merely tend to would facts on additional one or based the administrative whether or not as to issue becloud had body evidence, decision substantial its had based beyond power, arbitrarily capriciously, or its or acted party affected some constitutional violated ’’ only thereby. sound, it was further And stated practicable is workable rule that can announced or to which the is the court hold inquire agency only administrative taken from an shall judgment appealed is whether or not into proper according reasonable disclosed facts say, board, that is to whether or not its decision before supported by arbitrary substantial evidence or is capricious, etc., or in other words whether not was made in faith for cause. specially concurring
In his in that case, Justice Griffith stated that “The essential nature of such a re- view is that it must be of what the Board had before *11 it at the time made its order. It would be an incon- gruity permit as remarkable to another and different up appeal record to be made on to the circuit court as it would be to allow another and different record to be presented appeal question to this an Court on to it. The is, and must be, what did the Oil and Board have Gas before majority opinion it, all and this the has well sufficiently pointed “except out.” He then stated ” for appeal on the first in the case, McLeod he would judgment appealed have voted affirm from, wherein appeal the circuit court had dismissed the judgment from the gas of the oil and board, and evi- dently for judge reason that the trial could not know on what facts the board had unless he had been acted, transcript furnished a of the evidence. controlling opinion in the California case was not
entirely satisfactory anyone to the writer thereof nor to except else, that we were with what an- satisfied was nounced in language quoted therefrom, hereinbefore and that justified we were striking in down as uncon-
696 question provision in the Act there
stitutional provided trial de novo for a which permitted a to substitute have it would because both gas wherein findings board, that of the oil for its own aсting legislatively, and also because hoard provisions Act of the inconsistent confused and odd, under consideration. there prior in the McLeod to the decisions
hadWe upheld circuit court cases California public commis- judicially service determine whether Greyhound Inc. v. Miss. Lines, of Dixie in the case sion 579, 200 704, 190 Miss. So. Commission, Public Service evidence had acted on substantial 1 So. rendering appealed had or therein, power, beyond capriciously arbitrarily its acted argu- agree with are therefore unable to We etc. challenging the consti- of Meridian ment objection tutionality of the Act here involved provides we the circuit court; for appeal in the first McLeod to the decision on the adhere case, question held to be Act in extent that the doing our decision in so constitutional, and base by the limited circuit court is fact that the issue in the question civil whether the decision Act to the faith service commission "was or was cause.” Corporation v.
In the case of Russell Investment we 102, 107, So. Russell, Miss. So. Suggestion determining "In held of Error that: legislature transcend whether enacted statutes imposed by the limits constitutions the federal and state greatest possible proceed the courts should with *12 they void caution; and never statute should declare invalidity unless its established in their beyond adopt They a con reasonable should doubt. harmony bring the con struction that will with it into legitimate by restricting application stitution its up- legislation, necessary field of in order whenever constitutionality carry provisions into its its hold Citing authorities. And same effect.” numerous recognized principle v. in State Oil California Co. supra. Board, & Gas govern involved, enactment of the Act here
Prior to municipalities ing in could authorities of this State government proper local exercise, as function of city discharging uncontrolled discretion in the matter of employees satisfactory appointing to the reason Legis power, by at or for no reason but Act the all, power lature withdrew this unrestricted palities from munici experienced police fire members of de discharge partments, right and restricted the right cases mentioned in the Act. Section of job employee enjoy of such an to continue on his benefits, retirement etc. under civil service is valuable protected by which should be the courts to the seeing extent action of a civil service com discharging only mission in such an is taken good ques faith for a cause in the enumerated Act any, acting tion. There is scant if difference, acting faith for cause and in without substantial arbitrarily beyond capriciously, power evidence, of the etc. commission, the decisions in the Therefore, Greyhound Dixie case of v. Lines, Inc. Miss. Public Ser supra, subsequent vice ap Commission, the decisions on peals from that and the commission, case California very Co. v. State Board, Oil Gas have a material bear & ing question presented in the case, instant both as power judicial to the review and the courts they appeal. issue to which are confined on the Clancy In the cаse of v. Board of Fire & Police Commis Milwaukee, sioners of Wis. 138 N. W.
involving discharge department chief of the fire upheld constitutionality Milwaukee, Court provided, according the Act, which to what is stated ‘‘ that the case shall be tried Court, jury upon the court without a the evidence returned *13 “Upon that the Court held retrial And this the board.” ques only question the to be reviewed is the court the evidence was tbe decision the the board ‘Under tion legis T the further Court held ”, reasonable power “the court have that: circuit should idea was lative summarily the trial and for the decision, review to deciding guilty purpose whether the officer in fact was charges whether the court would decide made, or way upon simply but the whether evidence, the same statutory duty performed a rea had its and made board upon the i. acted not evidence; had e., sonable decision wisely, necessarily upon the evi as reasonable but men, placed them. before dence appeal per to
“In this substance, intended wliere functions of certiorari in a case form the writ of namely, nature, the writ is directed to tribunal of this only there review the evidence to ascertain whether to ground . . . for the decision made. was reasonable general opinion, purpose, as said in That before clearly a trier facts, not make court but sim- question ply acted a trier of the whether board has reasonably cause] the instant case in faith for [in To construe the law as the evidence before them. so guilt pass upon question permit as court to original question upon evidence never considered purpose, and should its dominant board would subvert unequivocal require con- done, words unless not be ’’ struction. Appeal In the case of 285 Mich. Fredricks, employees appellants, 125 A. L. R. N. W. discharged hearing department, the fire were commission, the civil service which sustained held before appeal discharging action of the officers. On ground on the the same was dismissed court, imposing unconstitutional and statute was void nonjudicial Supreme upon Court functions the court. The nonjudicial agreed trial court that functions upheld with the could but courts, not be conferred ground Legisla appeal the circuit a review de novo not intend ture did appeal confines of certi- limit but intended expressly provided Act however, In case, orari. (including’ the record should that the testimony) *14 we so commission, before the and as made provisions question, Act here in where the construe transcript requires that "a of record’-’ in it certified by the with the circuit court. shall be filed commission regard Act in that order to render "Weso construe having judicial hearing one of instead judgment court for that ciruit substitute its of on an executive matter, commission or administrative intelligently to the court to decide the enable limited issue it which is confined to the statute. City
The case of
Schoberlein,
496,
of Aurora v.
230 Ill.
contrary
82
E.
862,
N.
which
860,
held,
decisions,
our
property
that there
nois
in the
claim of
involved
employee to continue in civil service and recеive retire
recognized
involving
ment and other benefits,
that cases
rights
property
may
nonjudicial
appealed
from
bodies
opinion
but it
courts,
in the
reasoned
that if
circuit courts
powers
should assume to exercise executive
"They
practically
would
appointment
control the
departments
removal of
members
fire
in the
cities
applies, by
this state to
judg
which the act
the exercise of
ment
qualifications
and discretion as to fitness and
in
positions
departments,
dividuals for
in such
and not
ad
judicating rights
applying
the rules of law. That would
be
of
powers,
the exercise
separation
of executive
which the
departments
government
precludes
the court
”
exercising.
In 37 Am. Jur.
871-872,
243,
Section
‘ ‘
is said: The
having
power
officeror board
of removal
judge
is the sole
alleged
of the existence of
cause
for
removal,
his or its
is conclusive
any
if there is
support
evidence whatever to
it.
.
.
.
It is, however, for the
courts
determine
whether
alleged
cause
is sufficient as a matter
whether
law,
charge,
support
. .".
.
evidence
is
there
(2d)
440, 181
29,
207 Ark.
Dent,
v.
S. W.
In Williams
in the
instance,
“The
first
Council,
held:
the Court
33,
sufficiency
while
evidence,
Court
Circuit
determines
if
to determine
such evidence was
the record
examines
’’
City of Pitts
law.
In Crede v.
a matter of
sufficient
(2d)
burgh,
700,
it is said: “The
703,
A.
369,
355 Pa.
appeal are
author
without
Court on
court below and
weight
testimony
ity,
to consider
therefore,
though,
hearing
given
even
Commission,
at the
before the
may have been
of the Commission
the decision
in fact,
wrong:
Philadelphia,
8,
245,
305 Pa.
156 A.
1,
Souder v.
Pittsburgh,
In
v.
A. R. 610.”
Gretton
77 L.
247,
“findings
Court said:
344Pa.
A.
binding if
are
fact of a civil service commission
independent
pleas,
examina
common
after an
court of
substantial evidence
record,
finds that there is
tion of
weigh
evi
the court
them;
to sustain
only
abuse
sure that there
no
dence but
to make
has been
*15
part
Lowrie’s
of discretion on the
the commission:
of
(2d)
Appeal,
v.
12
Raffel
205,
582, 583;
338 Pa.
A.
203,
City Pittsburgh,
(2d)
393.”
246,
of
340 Pa.
16
243,
392,
A.
In the case
of
Vetterli v. Civil Service Commission Salt
of
City,
(2d)
Lake
it is said:
83,
797,
106 Utah
145 P.
792,
power
“the
conferred on the commission to ‘determine
power
brought
appeal,
the matter’
before it on
is
sufficiency
not
removal,
determine the
cause of
adjudge
simply
alleged by the
de
whether the cause
partment
authority,
having
true.
.It
is not
head is
province
judg
our
interfere with
the exercise
ment and
direct an order
of affirmance
reversal
discharge.
proceeding
order of
We
are limited
regularly pur
a determination of whether the commission
may
authority
clearly
sued the
we
it,
conferred
not reverse the case
commission
unless the
facts
arbitrarily
capriciously.
acted
64
Kimball,
Pincock v.
Utah 4,
701 export Corporation Smith, v. D. case of T Carrier Supp. Commission Van 28, 8 F. Service Civil C., (2d) 424,would 205 Matlock, Ark, S. W. 286, 168 Buren v. permit ap taking the court of more evidence before employee by here; peal, jury as was done before in the effect an unfortunate statement and to opinion same is Board, & Gas v. Oil California Co. State permit supra. trial anew But three neither cases issue heard or board. commission question provides hereinbefore the Act shown, As by jury for a trial is conceded but it court, employee counsel for that a trial de novo is not contemplated. recognized It is that the issue on is limited to action whether the of the commission was or holding good not in faith since are cause, and we transcript that a of the evidence taken before the com mission is essential to a determination of the issue before readily the circuit it will seen trial procedure jury sitting we would have the novel of a listening reading transcript to the of a evidence taken before the commission to determine whether or not sufficiently it is substantial as a matter of law to constitute employee a cause for removal of the for cause permitted retry faith, since the the facts. In the cases Rosenfelder v. Huttoe, 156 682, Fla. 24 (2d) (2d) So. 108; Barron v. 157 Fla. 26 Baillies, 492, So. Curry, City Manager, 449; Hammond 153 14 245, Fla. v. (2d) City So. Rapids, 390; Carrol v. Commission of Grand 265 Mich. 251 People Sweeny N. 381; W. ex rel. v. App. (2d) Camp Allman, Ill. 42 N. E. 115; and bell v. Civil Springfield, Service Commission of App. Ill. 105, N. E. cited herein, the Courts held aas matter of law that there was *16 no support substantial finding evidence of the ex agency ecutive or removing city administrative em ployee. present If such had been true in the case, there would have been no occasion to submit the matter to the jury, question but the by should have been decided
702 employee. if hand, the other On favor
court by support in the evidence heard a substantial there discharging employ in- action for the cоmmission a matter of law that action hold as its should the Court ee, appeals from our the same as on sustained, be should Commission. Public Service Quigg, 189, ex rel. 156 Fla. 23 v. So. State Nelson
In City reviewing the (2d) action Court, 136, have said: “We seems Miami, held, Commission findings universal that the rule, almost of fact be an to made by board, commission, administrative bureau, an appeal compliance with will not be disturbed law, findings by are sustained substantial evidence. if such Curry, (2d) Fla. 245, 14 v. 153 So. 390; Hammond Jenkins Curry, (2d) [154] Fla. 18 [617], 521; v. So. v. Callahan Curry, 668; 153 Fla. Marshall 744, Pletz, So. v. Virginia 87 L. Ed. 284, 348; 317 U. S. S. Ct. Elec tric & Power Co. v. National Labor Relations Board, 319 underlying 87 Ed. 1568. U. S. S. Ct. L. salient reasons for this safe and sane rule need not repeated province here. The fact that it is not the try appellate typed court to de cases novo on a cold ’’ transcript require elementary emphasis. is too require The views hereinbefore will stated reversal remand of the instant case in order may circuit court send back to the Civil Service Com mission of the retaking of Meridian for the of testi mony charges against employee filing this and the transcript of a prior thereof in the circuit court' to a re hearing appeal in such court. We do this parties reason that the holding relied supra, testimony case, McLeod and failed have only taken and transcribed. It is the use of the evi dence heard commission can have his case reviewed the circuit court on the limited prescribed by regard issue the Act in to the only circuit court, and it city means will be able to have the in the issue circuit court confined *17 discharge of the em- of whether a determination to ployee by the civil service commission “was was by in faith for cause” on the evidence made heard assuredly, appellate court Most no the commission. say permitted that the constituted author- should municipality, directly responsible of a are ities who discharg- the citizens ing' have in in thereof, acted bad faith away employee you an if take court the evi- city which the dence officialshave acted. affirmatively The record before us shows that some pre- the witnesses who testified the circuit court had viously hearing at the testified before commission. However, the as record silent to whether some hearings, other witnesses testified at both af- and does firmatively show that several those who testified testify circuit court did not before the commission. More- injected there was into the trial in over, the circuit court question Captain Terry whether or not the fire department prejudiced bore ill will and was toward this employee, and it ivas contended that the ill will in- captain responsible employee fluence of the having for suspended been in the first instance. Much was made of this contention on the trial in the alleged and instances unfair treatment of him the captain affirmatively related, were whereas it does not appear degree from the record with reasonable of cer- tainty hearing at this was issue before the civil service commission.
Again, two witnesses who had been with the connected police department many years testified that the em- ployee brought police here involved was to the station morning between three and four o’clock of Decem- ber taxicab, he “was drunk and passed part had whiskey out”, that he had aof bottle of in the they taxicab on the seat beside him had carry department the taxi driver him to the fire to be testimony positive sent home. This unequivocal as to the date occurrence and was relevant and support the contention
competent a circumstance city under the influence was still charge whiskey one set number the time stated at opinion. paragraph The incident two of this forth policemen em- was admitted two testified *18 testimony court ployee in the circuit he introduced but morning the of on this occurrence was effect that to the one and introduced December December instead of support of who ad- such contention or more witnesses testify mittedly the commission. not before did Pigford, department, P. who of the fire M. The chief in the circuit and also before the commisssion testified Captain Terry the that at the court, said instance of upstairs department 9:15 a. m. on went at or about he fire things that he and over”, “to look 24, 1949, December employee that he this accused and the breath of noticed whiskey a that him “if barrel”; like he asked “smelled ’ hopped up drinking something he, that ’; he not was ‘ safety not him in a did consider condition witness," suspended job”, thereupon him. that he be on the and by employee as This witness was offered an adverse the circuit court on the trial in but the sus witness city objection being a to his used as such tained city he neither a member com since was witness, the civil service and therefore commission, nor of mission within authori did not come Code Section party zing as a the introduction of adverse witness. interrogated employee on behalf of the He was then a witness. immediately witness further testified that follow-
This employee, ing leaving the latter, conversation with his complaint premises, his em- made fellow superior Captain Terry, ployee saying officer, that and department Terry reported him to the chief the fire had being before and had accused him of drunk. a few minutes Captain having Terry so was denied done and then called “ 1_” employee, then a d.... who had small Captain open Terry hand, knife his and as witness city although employee not did testified kept cursing attempt knife, him he with the cut things among him and called a “Gr-d- Captain other witness, ’’ Terry pimping cut him. threatened s.o.b. having upstairs the fire been at station where admitted “asleep shortly employee in a chair,” before he saw suspended by suggested chief, he had he was things go upstairs to the latter that he had-better and look report employee he drunk. over but did was This fire occasion when is claimed Pigford, employee chief, was under influence liquor, at the hour stated therein. employee It is contended that since the had turned cap, suspended, leaving his had fireman’s beеn premises controversy when the arose him between longer Captain Terry, and department he was no a member of the fire any subsequent and that acts or conduct suspension his the fire chief could not be the basis against specific verdict *19 charges paragraph opinion. set forth two of this trial court refused an instruction in that we behalf, and correctly think prior so since this occurred to his dis- charge by city manager on December 1949. In fact, this Court stated on the first in the of case supra, [198 McLeod v. Civil Service Commission, Miss. 917.] 21 So. that the commission when “makes, City’s called on do, so to final decision as to whether policeman discharged.” any shall be At rate, he was discharged by city manager, until two Roark, days controversy. after this
Including testimony of about seven who witnesses employee testified for the in the circuit who court, admittedly testify did not before the civil service com- testimony and the mission, of proof other witnesses, employee on behalf clearly preponderates sup- port of his contention that he was not under the influence liquor duty of charge while on at the time stated in num- paragraph ber one opinion. two of this The shift of changed em- there were eleven 8 a. andm., at workmen or that either went off ployees the two shifts each of on these number of A considerable that hour. at on came by the called as witnesses were not who firemen, fellow nothing they indicate city, that had observed testified liquor employee or influence of under the morning he drug or that 24, 1949, December of lady who were another His wife and a drink. had had morning present home, at time that his at breakfast say him, with all firemen who breakfast had two of manner at about to town in normal he his car drove under the influence of and that he was not 7:30 o’clock liquor. department, the fire testified The chief who morning, contrary had condition at 9:15 that as to his city approximately forty-five employed by the for been Terry, thirty-five years employ- Captain years, for city, he smelled ee of the was of what up “something whis- to cover the smell of was sen-sen key”; employee as heretofore and at least stated, and, three testified in the circuit court two or of his witnesses being police that the station occasion his carried to in a drunken condition at about three four o’clock was morning of December 26 the 24th instead city. policemen as testified to December, two it will the circuit Thus, be seen issue before language expressed as limited Act itself, was whether or not the civil service commission before it had such evidence as enable the commis- would guilty sion to find faith that the charges preferred; determining that in issue the is not shown to have had the benefit all testimony heard the commission, and did have the testimony, benefit of additional which in effect converted *20 the trial in the circuit court one novo, into de notwith- standing given jury the instructions the which are hereinafter discussed. jury employee
The court instructed the for the that if preponderance they believed “from the evidence by the-civil service commission taken the action that honestly upon good done, not a cause faith, not not acting commission could as such men, which reasonable adequate jury say reasonably cause”, the should granted employee. An instruction was for the find import placing the bur- Meridian of similar the prove employee bad faith. But court den jurors “you that further instructed judges only weight, and of the worth and are sole testimony you may credibility of the in this case, any against feeling ill will one consider or bad witness any testimony, another if such is shown inter- any, any witness, if est his demeanor witness any stand, and other fact and circumstance in evidence may you arriving you that assist at a are verdict, you right disregard have a instructed mony the testi- any you witness that believe to be untrue.” quoted jurors The instruction last above wherein the they judges only were told were “the sole and ’’ weight, credibility testimony, worth and had the ignoring province effect of of the civil com- service mission in that it behalf; authorized verdict ifas on a jury de any novo; trial authorized to consider ill feeling against will or bad of one witness if another, shown testimony, being without it shown whether or not any proof was before the civil service commission; jury “you anl it further told have a to dis- regard testimony you witness that believe to regard be untrue”, without to wiiether or may the commission have in faith believed the testi- mony of such witness be true. This is in- instruction contradictory consistent with and of the other instructions given above mentioned, when in connection with what may been, have far so as knew, or we can tell from the respects different record, case material that heard commission, had inevitable result converting the trial into one de novo wdierein performance embarked of an executive ad- *21 contrary the what was to held function, ministrative supra, reported in 199 appeal the McLeod case, second “It was when it was said: 24 So. Miss. appeal, competent, for the on the Circuit therefore, not jury an admin- themselves to convert into and its Court body a civil service commission and to become istrative original authority whether to the if to determine as with jury there cause for the dis- the court and minds of 'The Constitution which in this case. divides missal powers g’overnment separate departments, into three authority usurp stands forth other, neither to only upon inquiry which the court and and forbids. already namely, that stated, could embark was the action taken whether Civil Service Commission good honestly a cause which faith, done, acting’ reasonable as such could rea- men, commission, adequate only sonably say was an that cause. To extent ’’ judicial question. or could the a issue become would question In view the fact that the of whether or finding* approving of the civil service commission confirming discharge employee anof under the question question appeal Act in becomes of law on to judge the trial to decide in favor —for employee of the if the evidence heard before commis sion amounts no substantial еvidence favor charge charges preferred against or him and renders judgment appealed good from one not made in faith for say, arbitrary beyond capricious cause, that is to power of the to make, etc., commission on the and, other judge city hand, for the trial to decide in if favor of he finds evidence before the heard commission is substantial to such an extent that reasonable men on good commission could in faith find the guilty have been of an offense stated in Section of the discharge, Act be a cause for is the aof —it majority judges proper that there is no function perform for a on an to the circuit court when solely transcript the case is reviewed commission to determine record made before there law whether or not is basis in substan matter of say tial whether evidence its faith, or was not rendered commission “was good faith for It made in cause”. is to be conceded *22 not the court the Act does authorize circuit to deter employee mine the factual issue whether not the of or guilty complained or of, innocent of the conduct but reasonably merely whether the have commission could good believing in faith the be so from evidence acted alleged fore and whether the to a conduct amounted it, discharge. cause jority As heretofore a ma for stated, judges inquiry are of the that the presents purely question law, last above mentioned a of since the Act itself what defines constitutes cause, alwаys province judge it is the the trial of to determine whether or not there is substantial evidence to sustain disagree. finding may reasonably of fact about which men given haveWe discussed some of the instructions purposes, the circuit court show that all to intents and for the trial therein amounted one de novo, to notwithstand ing employ the fact that it is counsel for the conceded question, ee the that Act in unlike the in the one involved supra, case of California Co. v. Board, State Oil & Gas expressly provide not does such a Moreover, for trial. urged by very is the fact that issue in court is is the limited feature thereof which the Act renders constitutional. Legislature are
"We in accord with the view that the may grant right jury provided to a trial in cases not recognize for we Constitution, rule Legislature the of reenacting Chapter Section 10 of Chapter the Laws of 1944, as Section 503 of presumed approved Laws pretation is have the inter to already given which this Court had said section supra. ques in the cases, McLeod However, Legislature tion is not what the intended but rather do power whether it had the constitutional to confer nonjudicial function the exercise of court the circuit for that of permitting its substitute question presented ap agency an executive finding not the peal whether or the circuit court as to agency evi a basis substantial the executive had being prevent rendered one not it from dence such as to legisla cause. It was for such want faith for authority we struck down аs unconstitutional tive provision a trial in the involved in de novo Act supra. & v. State Board, the case of California Co. Oil Gas guaranty are unmindful Nor we of the constitutional by jury trial remain inviolate when shall rights property there is an issue to the involved as liberty where function of citizen, testimony. falsity But, is to determine the truth guilt em- issue or innocence the accused question ployee prescribed by Act to is agency be determined from the executive nothing the circuit There our court. novel about *23 holding appeals that on from an the instant case agency presents the executive or administrative issue judgment question a law as whether or not the of to good agency of such has sufficient basis to show evi- faith and it without or whether substantial cause, beyond power capricious, arbitrary the dence, of or or appeals agency all the case in make, the etc. Such is Commission, the other similar Public Service agencies. or executive administrative rights important property It is true that valuable employee we have involved, and benefits are as always recognized, hereinbefore fact but such does party entitle the invoke the constitutional interested guaranty jury. by better trial truth bo This can not itself illustrated than the fact that Constitution try upon chancery jurisdiction to confers both court the questions property important of law and where fact rights are of a without the intervention involved, and jury, right upon the cir- statute this is conferred
rH T“l appeals aof intervention without court cnit executive and other Commission Public Service from the nothing agencies. in this decision And administrative right impair any of trial manner to in intended is jury proper cases. Judges thought an issue of some of It is circuit court arise if on fact for could employee the record dehors offer evidence should bearing testimony di- commission, taken before the the rectly body, for faith of that as the want majority that a where it could be shown instance, (two having to render commissioners them they it) had stated that did not believe complained employee guilty but that of,' the they of the conduct awaiting opportunity get had been rid of general principle, merely they were paving way give employment else, to someone or had voted for some other than extraneous reason charges preferred against actual merits of the the em- ployee. presented However, no such issue is here and we merely purpose hold for the decision the instant long case that as as the issue is such as that raised question case, is to be decided aas of law on the evi- pretermit dence alone taken before the commission. We validity provision decision as to the in the Act by jury for a trial insofar as the trial of such an issue of may fact developed last above stated at some hearing future may of this or some other case be con- cerned.
The case must be reversed and remanded for further proceedings not inconsistent with the views hereinbefore stated rеhearing as to a before the when a commission, transcript preserved of the evidence shall be for use on *24 appeal another to the circuit court.
Reversed and remanded.
712 (dissenting).
Lee, J. think the cases, I two McLeod Civil v. Service Com (2d) mission of 21 Jackson, 918, Miss. So. 721, 916, McLeod, Jackson v. Miss. So. correctly they opinion, my were In decided. compel should be adhered to. Stare decisis an would affirmance this cause. Chap.
In (1) the former case, this Court held (2) Laws of 1944 is constitutional; to the that, transcript a cause is not to be tried on a (3) of the evidence taken before the commission; and by jury trial means “a trial de novo before guidance a judge, under the and control trial of the discharging each of these branches of the court the same always it functions that does trials therein.” The must have been all concurred in judges was no dissent. —there styled
On the return of the case as the latter here, majority opinion way changed cause, the in no modified previous its specially concurring opinion, decision. In his Judge Sydney organ Smith, the first Court on appeal, part: said in “What this Court there intended clearly hold, and . . . held, seems to have is that designated by judg- statute —whether the issue good was ment of faith for cause'—should not be tried Civil Service Commission made transcript the evidence but i. Commission, anew, e., heard jury.” on evidence then introduced before the Even in ‘ ‘ dissenting opinion, was said: The former reversal theory necessity that the fact based discharged or not men were faith whether these jury question; say, and for cause is to issue of fact all determined under of the evidence on trial de novo the Circnit Court where should always discharge ‘the same functions does ” trials therein.’
713 significance jury trial proclaiming a of thus Ill evidently keeping in this Court in the circuit statutes. Where its former decisions remembrance ‘ ‘ controversy . ., anew . in the circuit court is tried a Co., L. N. v. Dantzler Lbr. it is a trial de novo.” Knox try anew 876. “To a cause 873, 148 114 So. 834, Miss. try it if it been tried before.” means to as never had City Hattiesburg, of 132 96 v. Miss. So. 741. 808, Whittle Compare 1201, 1942; Newell, v. Sec. Code of Callahan Amory Independent Telephone 61 437; Cox, Miss. Co. v. 103 60 541, 641; Miss. So. National Hdw. Lumber Ass’n (2d) v. Gilmore Puckett Lbr. 49 689. Even Miss., Co. So. in the case of California Co. Board, v. State Oil Gas 200 & (2d) Miss. 28 824, 544, 120, 27 So. decided So. it within novo, October was said: “A trial de acceptation common . . . . of that term decisions of this Court, means the case be tried shall the same if it had not been tried and the court before, conducting findings may a trial substitute its own for those inferior tribunal from ’’ which the is taken. “ jury The court was mindful that a trial is a substantial right, lightly and valuable and should not be denied.” 50 Magna p. S., Juries, C. J. Section In Charta, 722. great English considered bulwark of liberties, provided: for there it was “No freeman hurt, shall be person judg- in either property his or unless lawful ’’ peers ment equals, of his the law the land. regarded It is now as a basic and fundamental feature jurisprudence, of our part and has a become the birth- right every free man. jury “A proceeding jurors trial a is in which the are judges judge facts and the court is the law.” controlling Am. Jur. 550. “The functions of a pronounce are credibility witnesses; disputed determine facts; draw conclusions ” doubtful contradictory premises . . . 53 Am. Jur. construing 143. In Sec. 31 our Constitution, where by jury that “The trial shall is ordained Summer, in Dement v. inviolate”, this Court
remain by jury in “A trial 791, 793, said: 290, 165 So. Miss. universally superior original jurisdiction held court of persons qualified who shall of twelve to mean superintendence trial tinder the decide the facts *26 power judge, declare the law.” who shall have the sole to supplied.) (Emphasis by right by jury, guaranteed
The inviolate of trial Constitution, course, Sec. 31 of the to those cases refers right adoption in which the at the time of the existed Chap. guaranty. true that Laws of 208, is And, passed subsequent adoption to Con- 1944, stitution of 1890. “In those cases in which But, legis- guarantee jury trial, not a Constitution does ” may deny right grant jury . . a trial. . lature Legis- p. Juries, 10, J. 725. And S., C. Section right power in lature exercised its It this instance. provided upon appeal that, to the circuit “the court, right by jury”. 10, accused shall have the Chap. trial Sec. language plain 208, Laws of 1944. The is unequivocal. imposes It limitation. no significant Legislature
Most intention of the is discharged employee its identification of the “the as Chapter provided supra, In 208, accused”. said it is public hearing to be after notice “the held may present hearing, At accused”. such “the accused” may appeal “The to the circuit his defense. accused” appeal, court. “the accused” have the On such shall by jury. right trial meaning a
“The accused” has definite certain charged jurisprudence. only our It is as “one defined in a criminal offense; with the defendant case.” Dictionary 1 C. S., Webster’s International 2nd Ed. J. charged gives p. 770 this definition: “One who is Accused, with a against by person proceeded indictment, a crime, penal proceeding. The has information, or other word inapplicable action; been a civil held defendant synonymous with ‘defendant’ criminal hut he ” acceptation douht as such . Common no . . cases Rights. familiarity widespread the Bill with stems prosecutions . . .” Article the accused “In all criminal See of the United States. Amendments, Constitution language Constitution Sec. also the identical 1890. evidently Legislature
By characterization, employee, a civil intended that service have a trial if were should he undoubtedly charged And with criminal offense. holding Court, anew, that there must trial must he impressed profoundly have been such characterization. kept Legislature may It should be in mind that grant right provided to a trial in not cases p. the Constitution. 50 C. J. S., Juries, Section supra. Legislature And 725, right where the has exercised its power, impair the courts must take away. by jury, granted “The of trial where it is statutory provision, constitutional or cannot taken *27 away impaired by courts, . . . ”. 31 Am. Jur. 561. supra,
The McLeod cases, were in decided The 1945. Legislature, again Chap. at its 1950 session, 208, had supra, under consideration. We must assume that the Legislature fully apprised was then had this Court upheld previously constitutionality to- Act, gether right with the discharged fundamental em- ployee to the circuit court, without reference by evidence which had been heard Commission, and that there, in the circuit he is entitled to a by jury trial just trial de novo—a trial anew—a trial —a as if it had never Legislature been tried If before. had could, desired to right any way, curtail in and doubtless have would, done so. It did not so. do supra, On contrary, Chap. it re-enacted See. 10, 208, Chap. as Sec. change 10, any Laws 503, without 1950, By doing, whatsoever. Legislature approved so 716
interpretation already given which this Court had to this supra, cases, in the McLeod and breathed into it the Act interpretation anew. The life of such construction readoption, part by such became a Court, readopted. Corporation Lochridge, Masonite v. section 364, 223, 163 Miss. 758. So. So. employment a fireman,
Davidson’s under civil serv ice, Reddoch, as said this Court of Laurel v. (2d) right 467, 200 Miss. 26 So. "a valuable is importance to him not one to lose.” could He lawfully except discharged good be faith for cause. discharged. good But he was On the issue of faith for cause—the instructions were couched in lan the exact guage approved of the model which was fashioned supra the second McLeod case, the circuit —the discharge court found that his not in faith for opinion, jury, my cause. verdict of the sus overwhelming weight tained In the evidence. juris wrong what can circumstances, with our prudence deprivation if it will not countenance Davidson’s valuable to work as.a fireman, family, together thus earn a livelihood for himself and except upon with other incidental benefits, the verdict of jury? why There are two reasons we should not be worried jurisdictions, about decisions other ma- cited jority opinion, question: (1) the constitutional We already have question; (2) settled that those de- cisions are not in conflict with In ours. the second supra [199 McLeod case, 321], Miss. So. Legislature was said: “The could not confer on judicial circuit court or authority other court the appoint discharge city employees, or to . . . and as pointed already Legislature out the been careful not has *28 ” to do so in the cited Act . . . it Biit, was also there said: “When an executive officer or administrative agent or goes beyond scope power vested him law judicial question becomes . . . The ”.
717 power question court to on the circuit confers Act in no place appoint employees. city a limitation on It does employees, ac- discharge have who, law, of certain rights. power discharge quired still exists The vested employees, faith when exercised even as to those city “A Besides, for derives its existence cause. perform powers by It can charter from the State. do authority . ”. all which it thereunder . . acts for has County, 116, of Indianola v. 209 Miss. Sunflower sovereign (2d) Manifestly, 46 So. 81. is sole powers judge grant. what as to it will Greyhound amI unable to how v. see Dixie Lines Miss. Public 579, 190 Miss. Commission, 704, Service So. applicable. (2d) majority opinion, 1 So. cited in the is 489, appeal Sec. 7699, Code fixes method of provided No those cases. trial is for.
Although weight given much seems have been the case of California State Co. v. Oil & Bd., Gas (2d) Miss. 824, 27 So. 121, it is So. majority opinion conceded it involved construction aof much “statute at variance with the one now before us”. at and for Indeed, variance; particular awry. that reason, should not lead us " language with dealt there and the shall was: matter tried de novo the circuit court and the circuit court approve authority shall disapprove have full action provision of the board.” "Whilethere awas a trial “de novo”, in the next court could breath, only “approve disapprove” the action of board. expressions wholly These were inconsistent. The so said. Under such circumstances, the Court invalidated provision, upheld “de novo” but under pointed limitations therein mentioned. It was out composed charged board was of those with administering great public policy experts. and of It by-passing possessed ridiculed the idea of such a board, learning, knowledge and skill the extraction of oil *29 substituting jury a non- therefor of earth, the experts. cry principle from the here. is a far one involved
That good question faith and whether David- cause, of On the liquor, an the influence of or made assault was under son disrespectful superior, upon, fair-minded to or his ivas competent ought the jury have as Civil Service been as to pos- The latter were not to have shown Commission. strength learning, any greater of moral fitness or sessed jury. the than the members of the think I' character Legislature in the trial in the circuit court intended that jury of factual be triers the the intermediate the should presented. there issue opinion majority springs fallacy the from con-
The Chap. supra, provisiоns fusing with those the appeals regard from other boards commissions. appeal right in the that, former, The distinction is latter, untrammeled, whereas, a trial anew is in the limitations. is circumscribed Instead recognizing giving validity to the the distinction purpose majority legislature, unmistakable jacket opinion Chap. supra, strait confines apart. foreign procedures, wholly which are other judicial my opinion, In this constitutes the rankest kind legislation. opinion majority position case
The takes the this poses incongruous problem jury deter- because the when mined faith for cause of the Commission it did not have same evidence Commission case But, when it is remembered that the considered. may surely court, was tried anew City jury far that, concerned, assumed so was City heard all of the evidence in offered defense before the Commission! It is inconceivable that presented than it did weaker case before the before evi- Commission. And the decided discharge dence sufficient show that by good faith and motivated cause. The circuit justice from a anew, on novo, de a trial duty uphold judg- peace court, has no bounden new deal. trial lower court. Such ment sanctity give to the strive to Neither should Court mere tribunal It is a inferior Commission. decision itself. majority in effect leaves the McLeod cases *30 uphold constitutionality they
only
far as
so
Chapter
supra.
they
I see
have
it,
as
Otherwise,
provisions
Chapter
overruled, and the
have
been
said
Formerly,
completely
no
been
rewritten
the Court.
transcript
taken beforе the
evidence
Commission
required.
provided
transcript
for or
Now,
was
such
is
required. Formerly,
employee,
appeal,
discharged
on
was entitled to a trial anew.
he can
no trial
Now,
have
Formerly,
jury
appeal.
anew.
he
entitled
was
to a
trial on
jury
have
Now, he can
no
trial. We have
that the
seen
legislature
power
provide
jury
had the
for a
trial in
p.
this kind of case. 50
J.
Juries,
C.
Section
S.,
supra.
seen,
We have
that,
such event, this Court has
power
impair
away
right
no
take
jury
to a
supra.
majority opinion
trial.
set out in the is there conceded City obtained the converse. Besides, obtained another jury instruction which told only question “the by you to be decided is whether or the action taken the Civil Service Commission honestly was in faith, done and a cause which acting reasonable men, as such Commission could reason ” ably say adequate was cause. . . . If ever instruc from error, cases, were free both under the tions McLeod supra, opinion, controlling under the also terms of They absolutely perfect. have them this case. are we agree I cannot with the criticism of the instruction given the effect tbat the are the Davidson weight, judges of the etc., set out evidence, majority opinion. Actually, in view of the abolition to a bad trial, no effect has and will never have in the decision, future. Ob superfluous. viously, is its discussion But, the instruc opinion, my tion, sets out an accurate statement of elementary principles jurors of which the were doubtless already province It aware. their to resolve dispute. Their issue attention called to testimony. which several traits often motivate human country, theory In this we subscribe to the if the that, jurors bear the witnesses and observe their demeanor they will stand, be able to determine truth. conflicting, when This the evidence necessitates, belief of some disbelief others. The criticised instruc *31 elementary tion, direction facts of human guide jurors arriving calculated to nature, was in at sound and valid conclusions. The Court could jury anything have told the which was more self-evident. majority proof The concedes “the employee clearly preponderates support behalf of the of bis contention that be was not under the influence of liquor duty charge at while on time stated number paragraph opinion.” Supplementing one two of this They statement, witnesses testified for Davidson. literally during night abstracted bis movements be discharge. They fore and until bis was testified that be liquor gave not under the influence of no evidence Only City. thereof at six all. witnesses testified for the something One smelled like sen-sen breath. Davidson’s liquor. Another said be smelled the odor of The version completely of two impeached, others was if the impeaching The of the evidence. evidence believed the evidentiary any, Of the if value. little, two was other working Davidson, with and around firemen, 20 odd City employees city, not a offered likewise single one. question jury was or not before the whether
Since the good Civil Service was action Commission honestly cause, a which reasonable faith, done, reasonably say acting commission, as such could men, adequate production cause, was an I think the of all necessary enable the determine facts alleged good faith for cause of the If Commission. good slight, ought evidence of cause was that fact impair good a claim of faith. And when the failed produce any large employees number of its who working were with and around Davidson, whereas David- produce my son opinion, did number of them, such fact, discharge
induced the conclusion that not made in faith. rights subsequently determination of human
adopted rule, different that in effect at the time of rights, repulsive accrual was so to the Found- ing they "that Fathers wrote into the Constitution prohibition against United States a passage post ex facto law. 3, Par Art. Sec. IX, I, Constitution Mississippi the United States. See also Art. 3, Sec. rights Chapter Constitution. Davidson’s under Sec. supra, accrued and were determined in the lower in.conformity interpretation court with the and construc- supra. tion thereof, as laid down in the McLeod cases, experienced change The Court has now of heart. Those awаy shearing cases have been overruled to extent of applicable substituting heart rule, there- altogether for a By harsher and different rule. such ex post *32 judicial legislation, facto Court this has done that to Davidson under which, no would it circumstances, Legislature. allow to be done him unto the Thus judicial protest against finally, violence sucli I and again vehemently know how. as I (dissenting). Hall, J. majority opinion respectfully herein dissent from
I has Justice Lee in his in what been said concur dissenting opinion. says place majority opinion in one city that Civil “purely an exercises Commission
Service place another it exercises and in function” executive ’’ ‘‘purely and that or administrative function executive beyond Legislature power of the to foist it was nonjudicial performance functions. a court and respect in what the functions of Civil I cannot see are either executive administra Commission Service tive, and therein lies one of differences between involving orders of State and Gras case those Oil the Public Service be Board and Commission. Matters originate fore the Oil and Gas Board are initiated body; the same true is as matters before before Public both bodies Service of those Commission; respective falling within administer the laws their jurisdictions. originate did case, however, This not began it when Commission; before Civil Service appellee discharged by city and there officials, appellee if an it would have ended had demanded investigation pursuant Ch. Laws of Sec. is, which to the effect, demand Commission city action of authorities. The Commission single does not exercise executive administrative strictly hearing appeal; function in it acts judicial capacity; judicially in a hears the evidence and discharged whether determines Every function which it faith for cause. exercises judicial questions purely involves decision is being I true, law and fact. This cannot concur of both majority asserting Court with *33 grant Legislature power beyond a trial of to de appeal the circuit court from a an decision novo is No section of the Constitution of commission. holding support a I am unable to cited to and any. find 171 of the Constitution creates the of
Section office justice provision peace, pro- but makes of no for the appeal judgment cedure an a the circuit court from justice By peace. of a of the of 1201, 1942, Section Code provided Legislature appealed has that when a ease is justice peace from a of the to the circuit court it shall be tried and anew, no court of this state has ever asserted Legislature right. did have such a
By single 208, Sec. Ch. Laws of there is not a provision stenographer that a shall 'take down the evi- hearing dence on the before commission and tran- simply provided scribe the it is same; that the accused may appeal by giving appeal a written notice “demanding transcript circuit court and that a certified papers of the all record and file in the of the office affecting relating commission to such order, lie filed the commission with such court. The days, filing commission within shall, ten after of such certify transcript notice, make, and file such with such Legislature require If court”. had intended reporter a take down the evidence and transcribe same file it and with the commission it would have been easy provided by simply matter substituting to have so the word “evidence” instead of the word “record” so provide as to ‘"‘transcript that there shall be filed a of provide. my judgment evidence” but it did not so In a “transcript of “transcript the record” not a is It many evidence”. is at once conceivable that in hear- before, ings physical impos- the commission it would be a sibility stenographer a up transcript for to make days. again Reverting justices evidence within ten peace, provision having is there no court reporter transcribing ordinary and the evidence in eases yet justice peace court,
in a Section 1198, provided appeal after notice of Code justice filing peace anof bond “The shall up transcript properly at once make the record and the same to the clerk of transmit up transcript if he fail to make shall so transmit the days record in filed, fifteen after the bond has been *34 disallowing the circuit court shall make an court order justice peace”. costs to the of the “tran- Webster defines script” copy. transcript a A as written of the record simply copy a written means of the record. It not does copy pro- evidence, mean a written of the for there is no reporter justice a vision for shorthand either in the peace proceedings court inor before the commission. my Legislature opinion provided In when the that the transcript file commission should in the circuit a court only copy of the record it meant a written of such record ordinarily, as was made before the commission, which, nothing' judgment just but the means which was entered, appeals justice as is done in the case of from a of the peace opinion majority grievous court. I think the inis assuming transcript error in that when a certified required record is that all means the evidence must be taken down and transcribed. The statute not cited does say proceedings upon that the in the circuit court shall be transcript says It record. “The said thereupon proceed court shall to hear and determine such appeal right and accused shall have the of trial jury” hearing and that the shall be confined to de- termination of whether the commission Legis- was or was not made in faith If for cause. hearing* lature had intended that the in the circuit court only upon transcript be a should of the evidence taken easily provided, before the commission it could have so but this it think did do. I the McLeod cor- case was rectly upon appeal that and decided, there be a should upon transcript trial de novo and not which the up commission sends the circuit court. What entirely majority legislative rewrite the in this is has dоne case Legislature provide act that which and employ provide, the commission viz., did not that shall hearing’ reporter that all the evi- it, before a for court hear- taken and transcribed, shall be down dence only transcript, ing court that in the circuit shall be deprived be of his to a that the accused shall by jury. trial majority wherein I feel that
Another instance gone astray, conceding even has sake argument purpose for that that there must alone, transcript abe full of the evidence in the circuit filed saying procedure a is novel would jury sitting listening reading have a transcript proper of the evidence there is no perform function for on an to the circuit agree procedure court. I cannot that it ais novel to have transcript thing very consider a evidence; frequently done in are the circuit court when cases depositions tried on taken in distant and no some state, questioned jurors having propriety one ever had *35 reading depositions, hear the which, all, of after are nothing transcript more than a of evidence. majority feel
I that very decision at strikes jury system. heart of authorizing our In the statutes appeals from the decisions of the and Board Oil Gas provision and Public Service Commission, is made for taking transcribing testimony and of those before provision bodies, and aggrieved there is no party by jury. shall be entitled a trial But here specific requirement there trial in jury is that there shall be a question the circuit court. The for trial is merely one of questiоn law, but is a of mixed law and Legislature fact, provides, and, where the so all issues of fact jury. agree are to be tried I cannot right roughshod this Court express has to run over an legislative fiat when it does not conflict with con provision stitutional especially and as in when, this 726 obeys merely the constitutional mandate that
case, by jury trial shall remain inviolate.” of “The are 1890. Bit bit our courts of Constitution 31, Sec. creating chiseling thereby exceptions to the rule are and right guaranteed by supreme away inalienable repeal positive I view with alarm the law the land. Legislature by judicial construction. mandates of system way life, American the bedrock of our is may de make manifest its and, while sometimes system yet It ficiencies, been devised. no better has improvement and to cast the the discard is no into single judge. I of a substitute therefor quotation v. close with Hercules Powder Co. 247, 189, 246, Miss. Williamson, So. again hope which law I see established as the of our ordinary jury supposed state: “The and is be, usually comprised men of education men little of, particular learning men of education, lines, learning’ only they have men whose what consists of heard, mechanics, farmers, seen and merchants, consulting they together constituted, laborers. Thus sit applying separate experiences their in the affairs proven life and from the their facts draw conclusions. average judgment given.it great ‘This thus is the effort the law to obtain. It twelve is assumed men know more of the common of life than one affairs does they man; can draw wiser and safer conclusions from single judge.’ occurring admitted facts thus than can a Railway Sioux & Pacific Stout, Co. v. Wall. page 21 L. Ed. 745.”